THERESA A. ESTRIGHT AND MARGARET S. INGOLD, PETITIONERS,
v.
BAY POINT IMPROVEMENT ASSOCIATION, INC. D/B/A BAY POINT COMMUNITY ASSOCIATION, RESPONDENT
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Petitioners sought a writ of certiorari to quash an order disqualifying their attorney under Florida Rule of Professional Conduct 4-1.9. The court denied the petition, finding that the attorney's prior representation of the opposing party in drafting the same homeowner association documents at issue in the current dispute constituted a conflict under the rule.
The disqualification order was proper. Rule 4-1.9(a) prohibits an attorney from representing a new client against a former client in the same or substantially related matter where interests are materially adverse. Here, the attorney's prior drafting of Bay Point's governing documents was substantially related to the current litigation, and no evidentiary hearing was necessary because Petitioners failed to dispute Bay Point's prima facie allegations.
[1] A court may disqualify an attorney under Rule 4-1.9 when the attorney previously represented a party in a substantially related matter and now represents a new party whos…
[2] An evidentiary hearing is not necessary for a motion to disqualify counsel when there are no disputed issues of material fact.
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Join FLexlaw to unlock all legal intelligence“An order involving the disqualification of counsel must be tested against the standards imposed by the [Florida Bar] Rules of Professional Conduct.”
Establishes the legal standard for reviewing disqualification orders under Florida professional conduct rules.
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Join FLexlaw to unlock all legal intelligenceBay Point filed a lien on Petitioners' property due to unpaid homeowner association fees for speeding tickets incurred by Petitioners' guests and cont…
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HAWKES, J.
Petitioners seek a writ of certiorari to quash an order of the circuit court granting Bay Point’s motion to disqualify Petitioners’ attorney. We deny the petition.
Bay Point filed a Claim of Lien on Petitioners’ property as a result of Petitioners’ refusal to pay the homeowner’s association for various speeding tickets incurred by their guests and contractors. In response to the Claim of Lien, Petitioners filed a counterclaim alleging: (1) deceptive and unfair trade practices, (2) slander of title, and (3) breach of contract and fiduciary duties. Bay Point then moved to disqualify Petitioners’ attorney pursuant to Florida Rule of Professional Conduct 4-1.9, based on his former drafting of the documents that enabled Bay Point to place the lien on Petitioners’ property.
After hearing argument from both parties, the trial court granted the motion. Petitioners did not file a response or an affidavit contesting Bay Point’s motion, below, nor did they provide this court with a transcript of the hearing.
“An order involving the disqualification of counsel must be tested against the standards imposed by the [Florida Bar] Rules of Professional Conduct.” Morse v. Clark, 890 So. 2d 496, 497 (Fla. 5th DCA 2004). Rule 4-1.9 is designed to protect client confidentiality and is “aimed at the problem of attorneys ‘switching sides.’ ” Kenn Air Corp. v. Gainesville-Alachua County Reg. Airport Auth., 593 So. 2d 1219, 1222 (Fla. 1st DCA 1992). Subsection (a) prohibits a lawyer who has formerly represented a client from “representing] 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 ...” (emphasis added). Id. Subsection (b) prohibits the lawyer from using information related to that representation to the former client’s disadvantage, unless the information is “generally known.” See id.
In its motion to disqualify, Bay Point alleged the requisite elements to disqualify Petitioners’ attorney under subsection (a). Specifically, it alleged (1) Petitioners’ attorney was Bay Point’s former attorney, and (2) he was involved in matters substantially related to the current litigation — i.e., the drafting the homeowner’s association’s governing documents which serve as an underlying basis of the present suit.1 Petitioners did not dispute either allegation, thus an evidentiary hearing was not necessary. See Allstate Ins. Co. v. Bowne, 817 So. 2d 994, 998 (Fla. 4th DCA 2002) (holding an evidentiary hearing is not necessary for a motion to disqualify counsel where there are no disputed issues of material fact).
In light of Bay Point’s prima facie allegations, which Petitioners did not contest, and Petitioners’ failure to provide this court with a hearing transcript, we presume the correctness of the trial court’s order and conclude it was not a departure from the essential requirements of law.
PETITION DENIED.
BARFIELD and WOLF, JJ., concur. . Petitioners’ contention that this was not "inside information” is irrelevant, because it was not necessary under subsection (a), or the case law applying it, for Bay Point to show that Petitioners' attorney obtained or used "inside information.”
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Young v. Norva L. Achenbauch, 136 So. 3d 575 (Fla. 2014)…les of Professional Conduct provide the standard for determining whether counsel should be disqualified in a given case. State Farm Mut. Auto. Ins. Co. v. KAMI., 575 So. 2d 630, 633 (Fla.1991); see also Estright v. Bay Point Improvement Ass’n, Inc., 921 So. 2d 810, 811 (Fla. 1st DCA 2006) (“An order involving the disqualification of counsel must be tested against the standards imposed by the [Florida] Rules of Professional Conduct.”) (quoting Morse v. Clark, 890 So. 2d 496, 497 (Fla. 5th DCA 2004)). In this c…
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Kaplan v. Divosta Homes, L.P., 20 So. 3d 459 (Fla. 2d DCA 2009)…v. Cooper, 981 So. 2d 668, 670 (Fla. 4th DCA 2008). “An order involving the disqualification of counsel must be tested against the standards imposed by the [Florida Bar] Rules of Professional Conduct.” Estright v. Bay Point Improvement Ass’n, Inc., 921 So. 2d 810, 811 (Fla. 1st DCA 2006) (quoting Morse v. Clark, 890 So. 2d 496, 497 (Fla. 5th DCA 2004)).3 A party seeking to disqualify opposing counsel based on a conflict of interest must demonstrate that: (1) an attorney-client relationship existed, thereby…
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Steinberg v. Robyn and Robert Marlin, 201 So. 3d 129 (Fla. 3d DCA 2015)…ng v. Achenbauch, 136 So. 3d 575, 580-81 (Fla.2014). “An order involving the disqualification of counsel must be tested against the standards imposed by the [Florida Bar] Rules of Professional Conduct.” Estright v. Bay Point Improvement Ass’n, Inc., 921 So. 2d 810, 811 (Fla. 1st DCA 2006). A party seeking to disqualify opposing counsel based on a conflict of interest-must demonstrate that: (1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were dis…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harvey E. Morse, P.A. v. Clark, 890 So. 2d 496 (Fla. 5th DCA 2004)
- Kenn AIR Corp. v. Gainesville-Alachua Cnty. Reg'l Airport Auth., 593 So. 2d 1219 (Fla. 1st DCA 1992)
- Allstate Ins. Co. v. Bowne, 817 So. 2d 994 (Fla. 4th DCA 2002)