Canta v. Philip Morris USA, Inc.
245 So. 3d 813
| Fla. Dist. Ct. App. | 2017Background
- Plaintiffs David and Corazon Canta retained the Ferraro Law Firm in their Engle-progeny tobacco suit against Philip Morris USA (PM) and R.J. Reynolds (RJR); suit filed 2007.
- In 2015 the Ferraro Firm hired Paulo Lima, who previously worked at Hunton & Williams and had billed extensive time on PM matters, including access to PM litigation databases and confidential documents relevant to Engle litigation.
- PM and RJR moved to disqualify Lima and the Ferraro Firm in multiple Engle-progeny cases beginning March 2016; some motions were later granted by trial courts and the Fourth District in Caro quashed an order denying disqualification and directed disqualification in that case.
- Lima continued working on Engle matters at Ferraro after PM’s initial March 2016 motions and was terminated by the Ferraro Firm on March 3, 2017; defendants then renewed disqualification motions in Canta.
- The trial court granted disqualification of the Ferraro Firm, reasoning that the conflict imputed while Lima was at the firm could not be cured retroactively by his later departure, particularly because the firm failed to screen or investigate promptly.
- The Third District denied the Cantas’ petition for certiorari, finding no departure from essential requirements of law and emphasizing the firm’s duty to screen new hires and that rule language and precedent do not support retroactive ‘‘unimputing’’ of an existing conflict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a law firm’s imputed conflict from a formerly associated lawyer can be cured by that lawyer’s later termination when the firm already represented the client before termination | Ferraro/Cantas: Rule 4-1.10(c) allows the firm to continue because Lima left and any disqualification should not survive his termination; departure moots imputation | PM/RJR: Imputation remains because Lima acquired confidential, substantially related information while at Hunton & Williams and the firm failed to screen or act promptly; termination does not erase prior taint | Court: Held termination did not cure the imputed conflict under these facts; no departure from essential requirements of law in disqualification order |
| Whether the firm’s post-hire screening or delayed actions can retroactively cure the conflict | Ferraro: Any screening or Lima’s affidavit that he disclosed no confidences rebuts presumption | PM/RJR: Screening implemented late (or not at all) cannot cure a conflict that existed when firm litigated disqualification; presumption stands | Court: Late or absent screening ineffective; firm had burden and failed to act promptly; presumption not rebutted |
| Whether Caro controls and requires disqualification here | Ferraro: Caro should be distinguishable because Lima left the firm prior to ruling in some cases and Rule 4-1.10(c) applies | PM/RJR: Caro applies; Lima’s prior work was substantially related and imputed conflict was already recognized by courts | Court: Caro and related authority were controlling and trial court did not err in applying the same reasoning |
| Whether Restatement (Third) §124 requires ‘‘removing imputation’’ after termination | Ferraro: Restatement supports removing imputation after lawyer leaves if no confidences were shared | PM/RJR: Restatement addresses proposed/new representations, not midstream representations already tainted while lawyer was associated | Court: Restatement does not change result here; removal of imputation applies to new prospective matters, not to ongoing representations already subject to imputation |
Key Cases Cited
- Engle v. Liggett Group, 945 So. 2d 1246 (Fla. 2006) (underlying Engle-progeny context for plaintiffs’ claims)
- Philip Morris USA, Inc. v. Caro, 207 So. 3d 944 (Fla. 4th DCA 2016) (applied two-prong disqualification test; held Lima’s prior work substantially related and required disqualification)
- State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630 (Fla. 1991) (presumption that confidences were disclosed when attorney-client relationship exists)
- LaSalle Nat’l Bank v. Lake Cty., 703 F.2d 252 (7th Cir. 1983) (screening implemented retroactively insufficient to cure prior conflict)
- Nissan Motor Corp. v. Orozco, 595 So. 2d 240 (Fla. 4th DCA 1992) (example of post-termination analysis where immediate termination and facts led to no disqualification)
- Koulisis v. Rivers, 730 So. 2d 289 (Fla. 4th DCA 1999) (places burden on firm to have screened hires to avoid ethical problems)
- Castro v. State, 597 So. 2d 259 (Fla. 1992) (discusses importance of protecting client confidences and public confidence in judicial system)