LINCOLN ASSOCIATES & CONSTRUCTION, INC., AND GUARANTEE INSURANCE COMPANY, PETITIONERS,
v.
WENTWORTH CONSTRUCTION COMPANY, INC., AND SUMMIT HOLDINGS-CLAIMS CENTER AND JOSE ARMANDO MEJIA, RESPONDENTS

Fla. 1st DCA | 2010-01-12
No. 1D09-2268
KAHN, BENTON, and THOMAS, JJ„ concur.
26 So. 3d 638 Florida District Court of Appeal, First District (2010) Positive Treatment
Cited by 8 cases

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Synopsis

Lincoln Associates and Guarantee Insurance Company challenged a judge's denial of their motion to disqualify opposing counsel Miller Kagan law firm, which was simultaneously representing both Guarantee and the opposing party Wentworth/Summit in the same workers' compensation action. The appellate court held that concurrent representation of adverse parties in the same matter violates Florida Bar Rule 4-1.7 and creates an irrefutable presumption of disclosure of confidences, requiring disqualification regardless of whether the conflict is deemed material.


Holding

The court held that Rule 4-1.7 prohibits concurrent representation of adverse parties in the same matter without written consent from each client and a reasonable belief that the representation will not adversely affect responsibilities to either client. The court rejected the materiality analysis and held that concurrent representation of adverse parties in the same action gives rise to an irrefutable presumption that confidences are disclosed, requiring disqualification as a matter of law.


Headnotes

[1] A law firm undertaking concurrent representation of two clients in the same action gives rise to an irrefutable presumption that confidences were disclosed.

[2] A lawyer may not represent two clients in the same matter unless the representation will not adversely affect responsibilities to each client and each client consents in…

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Key Quotes

“To disqualify a law firm from concurrently representing a party whose interests are adverse, a client need only show that an attorney/client relationship exists.”

Establishes the low threshold for disqualification—only an attorney-client relationship must be shown, without need to prove materiality of the conflict.

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Facts & Procedural History

The claimant filed petitions for workers' compensation benefits against both Lincoln/Guarantee and Wentworth/Summit. Lincoln/Guarantee denied responsi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioners, Lincoln Associates and Construction Company, Inc. and Guarantee Insurance Company (Lincoln/Guarantee), challenge the Judge of Compensation Claims’ (JCC’s) denial of their motion to disqualify the law firm representing Went-worth Construction Company and Summit Holdings-Claims Center (Wentworth/Sum-mit). Because Miller, Kagan, Rodriguez & Silver, P.L. (Miller Kagan) undertook concurrent representation of Wentworth/Sum-mit and Guarantee in the same action, the JCC erred in denying the motion to disqualify.

*639The claimant filed petitions for benefits against both Lincoln/Guarantee and Went-worth/Summit. Lincoln/Guarantee denied responsibility for the accident, alleging Claimant was a borrowed servant of Went-worth. Wentworth/Summit Holdings alleged Claimant was an employee of Lincoln.

Approximately two months before the final hearing, Guarantee retained Miller Kagan’s Special Investigation Unit/Fraud Investigation Unit to participate in an audit of Lincoln to determine whether the claimant was listed in Lincoln’s payroll submissions and to locate the owner of Lincoln. When the attorney representing Lincoln/Guarantee learned of Miller Ka-gan’s representation of Guarantee, he filed a motion to disqualify Miller Kagan as counsel for Wentworth/Summit in this matter. The JCC denied the motion, finding there was no material conflict.

Rule Regulating the Florida Bar 4-1.7 forbids a lawyer from representing two clients in the same matter unless the lawyer reasonably believes the representation will not adversely affect the responsibilities to each client and each client consents in writing or on the record. To disqualify a law firm from concurrently representing a party whose interests are adverse, a client need only show that an attorney/client relationship exists. See Univ. of Miami v. Dansky, 622 So.2d 613, 614 (Fla. 1st DCA 1993). The concurrent representation of two parties in the same action gives “rise to an irrefutable presumption that confidences [are] disclosed during the course of that relationship.” Id. (citing Junger Util. & Paving Co. v. Myers, 578 So.2d 1117, 1119 (Fla. 1st DCA 1989)). Miller Kagan conceded at oral argument that it represented Guarantee and Wentworth/Summit at the same time.

Here, the JCC erred in finding that the conflict had to be material. Rule 4-1.7 leaves no room for a “materiality” analysis. When Miller Kagan failed to prove it had the written consent from each client, and failed to prove that the representation of both clients would not adversely affect the responsibilities to each client, the JCC should have granted the motion to disqualify. As explained by the Fifth District Court of Appeal, rule 4-1.7 is

based on the ethical-concept requirement that a lawyer should act with undivided loyalty for his client and not place himself or herself in a position where a conflicting interest may affect the obligations of an ongoing professional relationship .... Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession.

Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 498 (Fla. 5th DCA 2004).

Based on the foregoing, we GRANT the petition for writ of certiorari and QUASH the JCC’s order denying Petitioner’s motion to disqualify. Accordingly, the JCC’s order denying the motion for disqualification is hereby vacated, and the cause is remanded for further proceedings.

KAHN, BENTON, and THOMAS, JJ„ concur.


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Citator

Cited By

  • McARTHUR v. Mental Health Care, 35 So. 3d 105 (Fla. 1st DCA 2010)
    …istrative Code Rule 60Q-6.125 because that issue was not specifically raised before the JCC and Claimant did not allege that the E/C or its attorney violated any rule of procedure or order of the JCC. See Lincoln Assoc. & Constr., Inc. v. Wentworth, 26 So. 3d 638 (Fla. 1st DCA 2010) (explaining that it is necessary for JCC to find a party willfully disregarded JCC’s authority before imposing sanctions such as striking E/C's defenses).…
  • Broin v. Phillip Morris Cos., Inc., 84 So. 3d 1107 (Fla. 3d DCA 2012)
    …t his advocacy on behalf of another client even if this occurs in unrelated matters. All that the party seeking disqualification must prove is that an attorney-client relationship exists. Lincoln Assocs. & Const., Inc. v. Wentworth Const. Co., Inc., 26 So. 3d 638 (Fla. 1st DCA 2010). Further, the court examines the circumstances from the client’s perspective in deciding whether an attorney-client relationship exists. United States v. Abbell, 900 F.Supp. 449, 452 (S.D.Fla.1995). If a rule 4-1.7 conflict aris…
  • …econd issue, whether the JCC abused his discretion in refusing to consider proffered testimony. Finally, because we granted Lincoln/Guarantee’s petition for writ of certiorari in Lincoln Associates & Construction, Inc. v. Wentworth Construction Co., 26 So. 3d 638 (Fla. 1st DCA 2010), we vacate the JCC’s order and remand this matter for further proceedings consistent with these opinions. Claimant filed petitions for benefits against Lincoln/Guarantee and Wentworth Construction Company, Inc. and Summit Holdi…

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