FRANK, WEINBERG & BLACK, P.A., F/K/A FRANK, EFFMAN, WEINBERG & BLACK, P.A., AND FRANK, WEINBERG & BLACK, P.L., PETITIONERS,
v.
STEVEN W. EFFMAN, RESPONDENT
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The law firm Frank, Weinberg & Black sought to disqualify opposing counsel who had previously represented the firm in an unrelated matter involving a different shareholder. The appellate court denied the disqualification petition, holding that the prior and current representations were not substantially related under Florida ethics rules.
The court held that the 1991 and 2003 suits were not substantially related within the meaning of Rule 4-1.9, and therefore disqualification was not warranted. The court found no danger of dissemination of confidential information since Effman himself was a party to the prior litigation and is already familiar with the firm's thinking and strategy.
[1] Certiorari is an extraordinary remedy that lies only when there is a departure from the essential requirements of law that will cause material injury that cannot be remed…
[2] Disqualification of a party's chosen counsel is an extraordinary remedy that should only be resorted to sparingly.
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Join FLexlaw to unlock all legal intelligence“the disqualification of a party's lawyer in a civil case is an immensely unusual remedy, one that must be employed only in limited circumstances.”
Establishes the high standard for disqualifying counsel, requiring departure from essential requirements of law
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Join FLexlaw to unlock all legal intelligenceSteven Effman, a former shareholder in the law firm, sued the firm in 2003 for an accounting and redemption of his ownership interest. The law firm's …
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PER CURIAM.
The defendant in the circuit court, Frank, Weinberg & Black, P.A. (the “law firm”), petitions for a writ of certiorari to quash a trial court order denying its motion to disqualify Jan Douglas Atlas and Adorno & Yoss, LLP as counsel for Steven Effman, the plaintiff below.
Effman is a former shareholder in the law firm. In 2003, he sued the law firm seeking an accounting and redemption of his ownership interest pursuant to a shareholders’ agreement. Atlas also represents Effman in litigation with former female clients who accused him of improper conduct; that same conduct is the subject of equitable affirmative defenses raised by the law firm in Effman’s suit against the firm for the proper valuation of his stock.
In 1991, Atlas represented the law firm in an action the firm brought against a departing shareholder, Lawrence Flaster, to recover fees Flaster received from clients.
Certiorari lies when there is a departure from the essential requirements of law which will materially injure the petitioner throughout the remainder of the proceedings which cannot be remedied adequately on appeal. See Bared & Co. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996). In the context of a certiorari proceeding, “[i]t bears repeating that the disqualification of a party’s lawyer in a civil case is an immensely unusual remedy, one that must be employed only in limited circumstances.” Allstate Ins. Co. v. Bowne, 817 So. 2d 994, 998 (Fla. 4th DCA 2002) (internal citations omitted); see Singer Island Ltd., Inc. v. Budget Constr. Co., Inc., 714 So. 2d 651, 652 (Fla. 4th DCA 1998) (where court wrote that “[disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.”).
Rule 4-1.9 of the Rules Regulating the Florida Bar provides that a “lawyer who has formerly represented a client in a matter shall not thereafter ... represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” See Anderson Trucking Serv., Inc. v. Gibson, 884 So. 2d 1046 (Fla. 5th DCA 2004).
The trial court did not depart from the essential requirements of law in ruling that the 1991 and 2003 suits were not “substantially related” within the meaning of the rule. The lawsuits involve entirely different facts, even though the underlying document governing the relationship is the same. One rationale for rule 4-1.9’s protection of client confidences is that the “legal system cannot function fairly and effectively if an attorney has an informational advantage in the form of confidences gained during a former representation of his chent’s current opponent.” State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 632 (Fla.1991). Here there is no danger of dissemination of confidential information, because Effman himself was a party to the prior litigation where he was represented by Atlas. As a former shareholder in the firm, Effman is already familiar with the law firm’s thinking and strategy concerning disputes with former partners.
Accordingly, we deny the petition for writ of certiorari.
WARNER, KLEIN, and GROSS, JJ., concur.
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Manning v. Cooper, 981 So. 2d 668 (Fla. 4th DCA 2008)…hannon’s possession of her SIU statement. The trial court granted the motion to disqualify, leading to this certiorari challenge by Manning. Certiorari lies to review orders on motions to disqualify counsel. Frank, Weinberg & Black, P.A. v. Effman, 916 So. 2d 971 (Fla. 4th DCA 2005); Whitener v. First Union Nat’l Bank of Fla., 901 So. 2d 366 (Fla. 5th DCA 2005). The petitioner has the burden to demonstrate that the trial court order constituted a departure from the essential requirements of law resulting in…
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Shana Strawcutter v. Strawcutter, 101 So. 3d 417 (Fla. 5th DCA 2012)…orders granting motions to disqualify counsel. In Manning v. Cooper, 981 So. 2d 668, 670 (Fla. 4th DCA 2008), the Fourth District explained: Certiorari lies to review orders on motions to disqualify counsel. Frank, Weinberg & Black, P.A. v. Effman, 916 So. 2d 971 (Fla. 4th DCA 2005); Whitener v. First Union Nat’l Bank of Fla., 901 So. 2d 366 (Fla. 5th DCA 2005). The petitioner has the burden to demonstrate that the trial court order constituted a departure from the essential requirements of law resulting in…
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Eccles v. Nelson, 919 So. 2d 658 (Fla. 5th DCA 2006)…departure from the essential requirements of law. See Metcalf v. Metcalf, 785 So. 2d 747 (Fla. 5th DCA 2001); Key Largo Rest., Inc. v. T.H. Old Town Assocs., Ltd., 759 So. 2d 690 (Fla. 5th DCA 2000); see also Frank, Weinberg & Black, P.A. v. Effman, 916 So. 2d 971 (Fla. 4th DCA 2005). This case was commenced when the respondent, Beverly Nelson, filed a petition for administration of the estate of her mother, Elfreda I. Eccles, who passed away in 2004. Ms. Nelson sought administration of a will dated January…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Bared & Co., Inc. v. McGUIRE, 670 So. 2d 153 (Fla. 4th DCA 1996)
- State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630 (Fla. 1991)
- Singer Island Ltd., Inc. v. Budget Constr. Co., Inc., 714 So. 2d 651 (Fla. 4th DCA 1998)
- Anderson Trucking Serv., Inc. v. Gibson, 884 So. 2d 1046 (Fla. 5th DCA 2004)
- Allstate Ins. Co. v. Bowne, 817 So. 2d 994 (Fla. 4th DCA 2002)