GENERAL ACCIDENT INSURANCE COMPANY, PETITIONER,
v.
BORG-WARNER ACCEPTANCE CORPORATION AND JOSEPH J. PACKAL D/B/A WELCOME VIDEO & ELECTRONICS, RESPONDENTS
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General Accident Insurance Company sought to disqualify opposing counsel after an inadvertent disclosure of its privileged claim file during litigation over alleged theft losses and insurance coverage. The court held that counsel must be disqualified due to the appearance of impropriety, even though no actual advantage could be measured, to preserve the integrity of the judicial process.
The court held that counsel for the insured and the secured creditor must be disqualified from the case. Disqualification is warranted not necessarily based on demonstrable prejudice, but because the possibility of unfair advantage and the appearance of impropriety threaten the integrity of the judicial process and public confidence in the courts.
[1] Inadvertent disclosure of privileged documents may warrant disqualification of counsel to preserve the appearance of justice.
[2] Disqualification of counsel is an extraordinary remedy to be resorted to sparingly.
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Join FLexlaw to unlock all legal intelligence“While recognizing that disqualification of a party's chosen counsel is an extraordinary remedy and should be resorted to sparingly, Norton v. Tallahassee Memorial Hospital, 689 F.2d 938 (11th Cir.1982), we believe the prudent course in this case is to disqualify counsel.”
Establishes the legal standard that disqualification is extraordinary but appropriate here despite being sparingly used
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Join FLexlaw to unlock all legal intelligenceJoseph J. Packal d/b/a Welcome Video & Electronics ceased payments to Borg-Warner (a secured creditor) following alleged theft losses and filed an ins…
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DOWNEY, Judge.
Following a series of alleged theft losses, Joseph J. Packai d/b/a Welcome Video & Electronics ceased making payments on its obligations to Borg-Warner, who held a security interest in Welcome Video’s inventory. Welcome Video also filed a claim against General Accident for benefits under an insurance policy issued by General Accident. Following an extensive investigation of the circumstances surrounding the alleged thefts, General Accident declined to pay Welcome Video.
Borg-Warner then brought suit against Welcome Video, seeking payment under a promissory note and security agreement and against General Accident for benefits as a loss payee under the insurance policy. Welcome Video filed a cross-claim against General Accident for benefits under the insurance policy. Likewise, General Accident cross-claimed against Welcome Video for insurance fraud.
During the course of this litigation one of the parties scheduled the deposition of General Accident Insurance Company and demanded the production of its claim file pertaining to the loss involved in this suit. General Accident objected and sought a protective order, which gave rise to a trial court order for an in camera inspection of the claim file. The trial judge inadvertently forwarded the file to David J. Palgon, counsel for the insured, Joseph J. Packai a/b/a Welcome Video & Electronics. Not realizing the file had been sent to him inadvertently, Palgon reviewed the file and discussed it with counsel for Borg-Warner. The trial court ultimately ruled that several portions of the file were work product, not subject to production for inspection.
Upon learning* of the mistake, General Accident moved the court to disqualify or recuse counsel for Joseph J. Packal and Borg-Warner from the case on the grounds that they had acquired an unfair advantage by virtue of the inadvertent disclosure of General Accident’s claim file and certain privileged documents. The trial court denied the motion and this petition for writ of common law certiorari resulted.
We have carefully considered the petition and responses filed by the parties and conclude that, in denying the motion to recuse, the trial court departed from the essential requirements of law which may result in prejudice that cannot be fully rectified by plenary appeal. While recognizing that disqualification of a party’s chosen counsel is an extraordinary remedy and should be resorted to sparingly, Norton v. Tallahassee Memorial Hospital, 689 F. 2d 938 (11th Cir.1982), we believe the prudent course in this case is to disqualify counsel. Like so many other ethical considerations in the practice of law, perceptions are of the utmost importance. Thus, how much of an advantage, if any, one party may gain over another we cannot measure. However, the possibility that such an advantage did accrue warrants resort to this drastic remedy for the sake of the appearance of justice, if not justice itself, and the public’s interest in the integrity of the judicial process.
Nothing done in this case should in any way reflect upon counsel or the court. The occurrence was simply an unfortunate mistake.
Accordingly, we grant the petition for writ of certiorari and quash the order in question and remand the cause with directions to recuse counsel for Joseph Packal d/b/a Welcome Video and Borg-Warner from the case.
LETTS and WALDEN, JJ., concur.
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Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1997)…ntly disclosed during an extensive document production. We find that the order departs from the essential requirements of law and that there will be no adequate remedy on plenary appeal. See General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1986). We grant certiorari, and quash the order. Abamar, a general contractor, subcontracted several portions of a construction project to Lisa Daly Lady Decor, Inc. [“Lisa Daly”]. Lisa Daly sued petitioners for breach of the subcontr…
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Applied Digit. Solutions, Inc. v. Hark Vasa, 941 So. 2d 404 (Fla. 4th DCA 2006)…ported by competent substantial evidence. Applied and Old PDS contend that even inadvertent disclosure requires disqualification of an attorney who obtains privileged documents, citing General Accident Insurance Co. v. Borg-Warmer Acceptance Corp., 483 So. 2d 505, 506 (Fla. 4th DCA 1986); Abamar Housing and Development, Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1997) (“Abamar I ”), rev. denied, 704 So. 2d 520 (Fla.1997); and Abamar Housing and Development, Inc. v. Lisa Daly Lady Decor,…
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In re Est. OF Frank A. Gory, Sr., 570 So. 2d 1381 (Fla. 4th DCA 1990)…s witnesses at the compensation hearing. The trial court granted the motion. Disqualification of a party’s chosen counsel is an extraordinary remedy and should be resorted to sparingly, see General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1986), and certiorari will lie to quash an order which improperly disqualifies counsel. Ocean Club Condo Ass’n v. Estate of Daly, 504 So. 2d 1377 (Fla. 4th DCA 1987); Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lilla Ann Norton and Constance Cummings v. Tallahassee Mem'l Hosp., 689 F.2d 938 (11th Cir. 1982)