Yang Enterprises, Inc. v. GeorgalisYang Enterprises, Inc. v. Georgalis
Martin A. Fitzpatrick, M. Stephen Turner and Mark E. Walker of Broad and Cassel, Tallahassee; Fred E. Pearson, Tallahassee, for Respondent.
THOMAS, J.
We previously denied this petition for writ of certiorari in our opinion dated April 2, 2008, where Petitioners sought to disqualify Respondent‘s law firm, asserting that Broad and Cassel also represented Petitioners. We also issued an order to Petitioners and their сounsel to show cause why attorney‘s fees should not be imposed pursuant to
Since November 2001, Petitioners have been involved in multiрle administrative, civil, and criminal cases related to Respondent‘s employment with the Florida Department of Transportation. Petitioners filed suit against Respondent for trade secret theft, tortious interference with a business relationship, and trade libel. In 1999, Petitioners retained Anthony Palma, an attorney in Broad and Cassel‘s Orlando office, for estate planning services. Mr. Palma represented Petitioners until June 2001.
When Petitioners filed suit against Respondent in November 2001, Rеspondent retained two attorneys from Broad and Cassel‘s Tallahassee office, M. Stephen Turner and Martin Fitzpatrick. In 2007, more than five years after Mr. Palma‘s completion of their estate planning, Petitioners filed a motion to disqualify Turner, Fitzpatrick, and the Broad and Cassel law firm.
In their motion, Petitioners argued that they have been current clients of Broad and Cassel since 1999, and they did not realize until 2007 that the firm represented Respondent. Petitioners argued that the firm‘s simultanеous representation of adverse parties presented a conflict of interest. Petitioners further asserted that they never consented to the firm‘s representation of Respondent in the instant case; therefore, the lаw firm‘s dual representation violates rules 4-1.7 and 4-1.10 of the Florida Rules of Professional Conduct.
The trial court denied Petitioners’ motion to disqualify, determining that Petitioners are former clients of Broad and Cassel, not current clients. The trial cоurt‘s ruling was not based on Petitioners’ status as clients, however, but on waiver. The court found that, given the extensive ongoing litigation, Petitioners knew of the purported conflict of interest years before they moved to disqualify the firm. Because Petitioners did not move to disqualify Broad and Cassel until 2007, and because it would have greatly prejudiced Respondent to remove the firm that had been representing her for six years, the trial court ruled that Petitioners had waived any claim regarding a purported conflict of interest. The court found it unnecessary to reach the disputed factual issue of whether Petitioners had consented to the dual representation.
Significantly, Petitioners did not seek an evidentiary hearing to establish the material facts, nor did Petitioners object to the trial court‘s factual conclusions regarding their motion.
II. Analysis of Attorney Disqualification Issue
Certiorari is the appropriate remedy to review orders denying a motion to disqualify counsel. See Zarco Supply Co. v. Bonnell, 658 So.2d 151, 153 (Fla. 1st DCA 1995). Accordingly, Pеtitioners had to show that the circuit court departed from the essential requirements of law and that this departure resulted in a material injury that cannot be corrected on postjudgment appeal. See Zarco, 658 So.2d at 153. An error of law is not necеssarily a departure from the essential requirements of law. See, e.g., Rich v. Fisher, 655 So.2d 1149 (Fla. 4th DCA 1995). “A ruling constitutes `a departure from the essential requirements of the law’ when it amounts to `a violation of a clearly established principle of law resulting in a miscarriage оf justice.‘” Byrd v. Southern Prestressed Concrete, Inc., 928 So.2d 455, 457 (Fla. 1st DCA 2006) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)).
Disqualification of an attorney is an extraordinary remedy and must be sought with “`reasonable promptness ... to prevent ... using the motion as a tool to deprive [the movant‘s] opponent of counsel of his choice aftеr completing substantial preparation of the case.‘” Lee v. Gadasa Corp., 714 So.2d 610, 612 (Fla. 1st DCA 1998) (quoting Transmark, U.S.A. v. State, Dep‘t of Ins., 631 So.2d 1112 (Fla. 1st DCA 1994)). Such motions are “generally viewed with skepticism because ... [they] are often interposed for tactical purposes.” Alexander v. Tandem Staffing Solutions, Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004) (citing Evans v. Artek Sys. Corp., 715 F.2d 788 (2d Cir.1983); Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir.1988)); see also Key Largo Restaurant, Inc. v. T.H. Old Town Assocs., Ltd., 759 So.2d 690, 695 (Fla. 5th DCA 2000) (Griffin, J., dissenting) (noting that five-year delay in filing successful motion to disqualify constituted “litigation tactic” and caused other party prejudice). We believe Petitioners’ motion, and certainly this petition for writ of certiorari, were filed as just such a litigation tactic.
Even had the trial court not properly found that Petitioners waived a claim of conflict, Petitioners’ assertion that they were current clients was baseless and not supported by the material facts or applicable law. Additionally, based on the undisputed facts, Petitioners had no legal cause to seek disqualification as former clients. See rule 4-1.9, Fla. R. Prof. Conduct; Morse v. Clark, 890 So.2d 496 (Fla. 5th DCA 2004).
Petitioners argued below that they are current clients of Broad and Cassel and relied primarily on two cover letters sent from a paralegаl in Broad and Cassel‘s Orlando office in 2004 and a paralegal‘s bill for minor changes to their estate file in 2007. None of these acts indicated a continuing legal representation, but rather they were ministerial tasks performed to update the completed estate planning documents. This ministerial work does not meet the definition of the “continuous representation rule.” See Hampton v. Payne, 600 So.2d 1144, 1146 (Fla. 3d DCA 1992). There was no “clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney.” Muller v. Sturman, 79 A.D.2d 482, 437 N.Y.S.2d 205, 208 (1981). It is undisputed that Petitioners did not speak to an attorney in 2004 concerning their minor beneficiary changes, nor did any attorney work on their estate plan between June 2001, when Mr. Palma‘s work wаs completed, and 2007, when some minor tasks were performed by a paralegal.
Broad and Cassel‘s representation of Petitioners came to an end in June 2001, making them former clients of the firm. While Petitioners subjectively asserted below that the firm still represented them, the objective record evidence belies their
Even assuming, arguendo, that Petitioners demonstrated material facts belоw to support the assertion that they were current clients, we find no basis for their claim here that the trial court departed from the essential requirements of law in determining that Petitioners waived any conflict by waiting until 2007 to file their motion to disqualify. See Lee, 714 So.2d at 612. The facts presented demonstrate that Petitioners had actual knowledge of the conflict in 2001 but did not act on this knowledge until much later, when disqualifying the firm would severely prejudice Respondent.
Further, no decision of this court supports Petitioners’ assertion that the trial court‘s ruling of waiver departed from the essential requirements of law. While the Fifth District‘s decision in Key Largo Restaurant may indeed provide a legal justification for this disqualification effort, that decision is not the law of the First District. Rathеr, this court‘s only applicable decisions are Lee and Transmark, neither of which supports Petitioners’ motion.
Moreover, Petitioners asserted no legitimate argument below that their delay in filing the motion to disqualify did not prejudice Respondent. Since 2001, Attorneys Turner and Fitzpatrick have been representing Respondent in not only the trade secrets case and counterclaim, but also in the other civil, criminal, and ethics litigation. They are intimately familiar with the facts and procedural background of the cases. No other attorneys or firm can plausibly represent Respondent at this juncture and gain the detailed knowledge that Turner and Fitzpatrick have accumulated over the years.
III. Attorney‘s Fees Under Section 57.105, Florida Statutes
A court “shall” award attorney‘s fees under
We also find the relevant factual assertions made by Petitioners’ attorney to be not credible. Specifically, at oral argument he claimed no knowledge of the nature of Broad and Cassel‘s work for Petitioners after 2001, or whether a paralegal or an attorney had performed that work. Counsel also insisted that neither he nor
Additionally, counsel‘s assertion that he should not be held liable for one-half of the attorney‘s fees under
Conclusion
We conclude that this petition for certiorari was not supported by any material facts or by an application of the law to those facts; therefore, pursuant to
REMANDED for a factual determination of the amount of attorney‘s fees incurred by Respondent in this certiorari proceeding.
ALLEN and WEBSTER, JJ., concur.