69 So. 3d 1046
Fla. Dist. Ct. App.2011Background
- Bank sues Frye on a personal guaranty after LLC foreclosure; Bank initially represented by Salvatori firm.
- Frye hires Arnstein & Lehr to defend; later replaces them with new counsel.
- Frye sues Trupp and Arnstein for legal malpractice; Frye claims they acquired confidences about his finances.
- Henderson Franklin later substituted for Salvatori to represent the Bank; Trupp and Arnstein then hired Henderson Franklin for the malpractice case.
- Frye moves to disqualify Henderson Franklin from Bank’s guaranty action due to unfair informational advantage from dual representation.
- Circuit court denies disqualification; Frye seeks certiorari review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Henderson Franklin should be disqualified. | Frye: dual representation gives unfair access to confidences. | Bank: no attorney-client relationship with Frye; no irrefutable presumption. | Disqualified due to unfair informational advantage. |
| What governing rule applies to disqualification in this context. | Disqualification appropriate under Adelman because privilege can be disclosed to opponent's counsel. | Kaplan analysis controls; no irrefutable presumption without counsel relationship. | Adelman governs; Kaplan inapplicable as the basis for disqualification. |
| Is the privilege disclosure allowed to defense counsel in malpractice action? | Frye argues privilege info may be shared with Henderson Franklin for defense of malpractice claim. | Ethical rules permit disclosure to the extent necessary to defend the malpractice action. | Yes, permissible; but disclosure creates disqualification unless limited by rule. |
| Should the Kaplan framework be applied here? | Not necessary; focus on unfair information advantage. | Kaplan requires attorney-client relationship and same/substantially related matters. | Kaplan not controlling for disqualification on unfair informational advantage. |
Key Cases Cited
- Adelman v. Adelman, 561 So. 2d 671 (Fla. 3d DCA 1990) (duality of representation may breach privilege; disqualification proper)
- Kaplan v. Divosta Homes, L.P., 20 So. 3d 459 (Fla. 2d DCA 2009) (need attorney-client relationship and substantially related matter for disqualification)
- State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630 (Fla. 1991) (irrefutable presumption of confidences arises from attorney-client relationship)
- General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1986) ( inadvertent disclosure can trigger disqualification to prevent privilege breach)
- Greig v. Macy's Ne., Inc., 1 F. Supp. 2d 397 (D.N.J. 1998) (disqualification when similar unfair informational advantages arise)