JAMES WALKER, PETITIONER,
v.
RIVER CITY LOGISTICS INC., AND CNA CLAIM PLUS, RESPONDENTS
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A Florida appellate court granted a petition for writ of certiorari challenging a workers' compensation judge's order disqualifying the claimant's counsel based on the counsel's possession of documents the employer claimed were privileged. The court held that the employer's voluntary disclosure of the documents to the claimant's public defender in another proceeding waived any privilege, making the disqualification order erroneous as a matter of law.
The court held that the disqualification order departed from the essential requirements of law. Because the employer voluntarily disclosed the documents without asserting inadvertence, the privilege was waived under Florida Statute § 90.507. Since the documents were no longer privileged, the disqualification of counsel was improper.
[1] Disqualification of counsel constitutes a material injury not remediable on plenary appeal, thus satisfying the irreparable harm prong for certiorari review.
[2] A voluntary disclosure of privileged documents waives the privilege.
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Join FLexlaw to unlock all legal intelligence“disqualification of counsel denies a party its counsel of choice, such disqualification constitutes a material injury not remediable on plenary appeal”
Establishes why disqualification of counsel warrants certiorari review despite being an interlocutory order, as it causes irreparable harm
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Join FLexlaw to unlock all legal intelligenceThe employer/carrier filed a motion to disqualify the claimant's workers' compensation counsel, alleging that the counsel possessed documents that the…
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Petitioner/Claimant seeks review of an order disqualifying his workers’ compensation counsel below for possession of documents deemed privileged. For the reasons explained below, we grant the petition.
This court will grant a certiorari petition when an interlocutory order “departs from the essential requirements of law, causing material injury of an irreparable nature which cannot be remedied on appeal from a final order.” Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169, 1176 (Fla. 1st DCA 2008) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)). The irreparable harm prong of this test should be considered first, as it is a condition precedent to invoking certiorari jurisdiction. Id.; see Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998).
As Claimant points out, because disqualification of counsel denies a party its counsel of choice, such disqualification constitutes a material injury not remediable on plenary appeal. See, e.g., Secours-Maria Manor Nursing Care Ctr., Inc. v. Seaman, 959 So.2d 774, 775 (Fla. 2d DCA 2007); Akrey v. Kindred Nursing Ctrs. E., LLC, 837 So.2d 1142, 1144 (Fla. 2d DCA 2003). Disqualification of counsel is an extraordinary remedy. See Yang Enters., Inc. v. Georgalis, 988 So.2d 1180, 1183 (Fla. 1st DCA 2008). Accordingly, this court reviews an order of disqualification by certiorari and, upon a showing that the order departed from the essential requirements of law, this court may issue the writ. See, e.g., Seaman, 959 So.2d at 775; Akrey, 837 So.2d at 1144.
The JCC’s order departed from the essential requirements of law. The employer/Carrier’s (E/C) motion to disqualify counsel contains statements that the E/C disclosed privileged documents to Claimant’s public defender in another proceeding. The E/C has not argued that this disclosure was inadvertent. The E/C’s voluntary disclosure of the documents waived the privilege. See § 90.507, Fla. Stat. (2006). Because the documents were no longer privileged, the JCC’s order disqualifying Claimant’s workers’ compensa*1124tion counsel below departed from the essential requirements of law.
The petition for writ of certiorari is GRANTED.
DAVIS and BROWNING, JJ., concur.
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Anheuser-Busch Cos., Inc. v. Staples, 125 So. 3d 309 (Fla. 1st DCA 2013)…squalify counsel.”). As this Court recently noted, “because disqualification of counsel denies a party its counsel of choice, such disqualification constitutes a material injury not remediable on plenary appeal.” Walker v. River City Logistics Inc., 14 So. 3d 1122, 1123 (Fla. 1st DCA 2009). Thus, the only question is whether the order below departed from the essential requirements of law. Id. . It Disqualification of a lawyer is a serious matter, so serious that it is highly disfa [*316] vored because it op…1 / 2
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Elms v. Castle Constructors Co. & Bridgefield Emp'rs Insurers/Claims Ctrs., 109 So. 3d 1274 (Fla. 1st DCA 2013)…DCA 1985) (observing that, without assistance of competent counsel, claimant would have been “helpless as a turtle on its back” in attempting to recover impairment benefits withheld by E/C). This case is unlike Walker v. River City Logistics, Inc., 14 So. 3d 1122 (Fla. 1st DCA 2009), in which this Court granted a petition for writ of certiorari and quashed the JCC’s order disqualifying the claimant’s attorney. The effect of the order in Walker was to “den[y] a party its counsel of choice.” Id. at 1123. Here…
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Louisa Tumelaire v. Naples Ests. Homeowners Ass'n, Inc., 137 So. 3d 596 (Fla. 2d DCA 2014)…closed); see also Kaplan v. Divosta Homes, L.P., 20 So. 3d 459, 462 (Fla. 2d DCA 2009) (noting that homeowners’ voluntary disclosure of information to their next-door-neighbor’s relatives would waive privilege); Walker v. River City Logistics, Inc., 14 So. 3d 1122, 1123 (Fla. 1st DCA 2009) (holding that voluntary disclosure of allegedly privileged documents waived privilege). Voluntary disclosure of alleged work product waives work-product privilege where that disclosure is inconsistent with maintaining secre…
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
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Jaye v. Royal Saxon, Inc, 720 So. 2d 214 (Fla. 1998)
- Commonwealth Land Title Ins. Co. v. Higgins, 975 So. 2d 1169 (Fla. 1st DCA 2008)
- Selina Akrey v. Kindred Nursing Ctrs. E., L.L.C., 837 So. 2d 1142 (Fla. 2d DCA 2003)
- BON Secours-Maria Manor Nursing Care Ctr., Inc. v. Bettye Seaman, 959 So. 2d 774 (Fla. 2d DCA 2007)
- Yang Enters., Inc. v. Mavis Georgalis, 988 So. 2d 1180 (Fla. 1st DCA 2008)