JAMES R. WELLS AND HIS WIFE, BRENDA WELLS, PETITIONERS,
v.
GERARD D. GRAU, M.D., FORT LAUDERDALE PLASTIC SURGERY CENTER, P.A., AND SHARON SHEAF GRAU, RESPONDENTS
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Attorney disqualification reversed where counsel violated discovery rules in taking an improper deposition but obtained no privileged information and gained no unfair advantage in the medical malpractice case.
An attorney should not be disqualified from representing a client in a medical malpractice case merely for taking an improper deposition in an unrelated bankruptcy proceeding when no privileged or objectionable information was actually obtained and no unfair advantage resulted.
[1] Disqualification of counsel is improper where an improper discovery violation in an unrelated case yields no privileged information and confers no unfair advantage, thoug…
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Join FLexlaw to unlock all legal intelligence“he should not have been disqualified from representing the petitioners in the medical malpractice case below since there was no showing that he obtained an unfair advantage by reason of the improper deposition”
Court's explanation of why disqualification was improper despite the procedural violation
Attorney Tobkin, representing plaintiffs in a medical malpractice suit, took a deposition in an unrelated bankruptcy case and asked questions about th…
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PER CURIAM.
The petitioners, plaintiffs in a medical malpractice suit below, seek certiorari review of an order disqualifying their attorney, Donald Tobkin. While taking a deposition in an unrelated bankruptcy case, Tobkin asked certain questions which pertained to the deponent’s involvement in the preparation of a pre-suit affidavit for the defense in the Wells’ medical malpractice case. Although this deposition appears to have violated the bankruptcy rules1 and the prohibition against discovery in the Florida Medical Malpractice Act, Tobkin did not actually obtain any privileged or objectionable information in that deposition. Consequently, he should not have been disqualified from representing the petitioners in the medical malpractice case below since there was no showing that he obtained an unfair advantage by reason of •the improper deposition. See 5500 North Corp. v. Willis, 729 So. 2d 508 (Fla. 5th DCA 1999).
We, therefore, grant the petition for writ of certiorari and quash the order disqualifying counsel. The trial court may consid er taking other action, including ordering that the deposition not be used and striking any pleading in whole or in part that refers to information obtained in the deposition. Of course, the trial court still has the authority to sanction Tobkin and even refer the matter to the Bar, as in 5500 North.
STONE, STEVENSON and HAZOURI, JJ., concur. . Counsel was fined by the bankruptcy court.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Whitener v. First Union Nat'l Bank OF Fla., 901 So. 2d 366 (Fla. 5th DCA 2005)…ether to disqualify counsel for allegedly reviewing privileged information, there must be proof that confidential information was actually disclosed and that this information gives an unfair advantage by virtue of that disclosure. See Wells v. Grau, 744 So. 2d 544 (Fla. 4th DCA 1999) (quashing order disqualifying counsel where counsel did not obtain privileged or objectionable information in deposition). Moreover, the disclosure of the contents of privileged communications does not warrant disqualification of…
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Cunningham v. Appel, 831 So. 2d 214 (Fla. 5th DCA 2002)…hstanding, the disclosure of the contents of privileged communications does not warrant disqualification of opposing counsel if no informational advantage is gained. Eg., 5500 North Corp. v. Willis, 729 So. 2d 508 (Fla. 5th DCA 1999); Wells v. Grau, 744 So. 2d 544 (Fla. 4th DCA 1999). As explained in General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505, 506 (Fla. 4th DCA 1986), the advantage an attorney may gain from the disclosure of privileged documents is not always measurable. The cou…
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Palmer v. State, 775 So. 2d 404 (Fla. 4th DCA 2000)…the trial court permit Mr. Levine’s appearance, we conclude that the proper remedy is a writ of certiorari. Saud v. Arzumanian, 745 So. 2d 544 (Fla. 4th DCA 1999) (an order disqualifying a party’s counsel is reviewable by certiorari); Wells v. Grau, 744 So. 2d 544 (Fla. 4th DCA 1999); Robinson v. State, 750 So. 2d 58 (Fla. 2d DCA 1999). We accordingly treat this petition as a petition for certiorari. In Levine v. State, 650 So. 2d 666 (Fla. 4th DCA 1995), this court concluded that an adversarial relationship…
Authorities Cited
- Rocco v. Singletary, 729 So. 2d 508 (Fla. 3d DCA 1999)
- 5500 N. Corp. v. Willis, 729 So. 2d 508 (Fla. 5th DCA 1999)