CARLOS GUTIERREZ, CMG ENTERTAINMENT, INC., ETC., FONDO MIXTO DE CULTURA DE BOYACA, ETC., LA CORPORATION CULTURAL VIVA LA MUSICA, ETC., PETITIONERS,
v.
PAULINA RUBIO A/K/A PAULINA RUBIO DOSAMENTES, AND LINK TOURS, INC., RESPONDENTS

Fla. 3d DCA | 2013-04-03
No. 3D13-52
Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
126 So. 3d 320 Florida District Court of Appeal, Third District (2013) Positive Treatment
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida Third District Court of Appeal quashed a trial court's order disqualifying plaintiff's counsel Richard Wolfe, finding that the court erred by deciding the disqualification motion based solely on conflicting affidavits without conducting an evidentiary hearing to resolve disputed factual issues regarding whether confidential information was actually disclosed and whether any unfair tactical advantage resulted.


Holding

The trial court erred by granting the disqualification motion without conducting an evidentiary hearing. Because disqualification is a drastic remedy that must be employed only in limited circumstances, a court must make a factual determination through proper evidence that (1) confidential information was actually disclosed and (2) this information gave the non-moving party an unfair tactical advantage. The trial court departed from the essential requirements of law by considering only conflicting affidavits without resolving the disputed factual issues.


Headnotes

[1] Disqualification of counsel is a drastic remedy that should be employed only in limited circumstances.

[2] Disqualification of an attorney requires proof that confidential information was actually disclosed and that this disclosure provided an unfair tactical advantage.

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Key Quotes

“disqualification of a party's lawyer in a civil case [is] a drastic remedy, one that must be employed only in limited circumstances”

Establishes the high bar for disqualification and the court's general reluctance to impose this remedy absent extraordinary circumstances.

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Facts & Procedural History

Plaintiffs sued Paulina Rubio for breach of an entertainment contract in 2010, represented by attorney Richard Wolfe. In September 2012, Rubio hired F…

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Opinion of the Court
SUAREZ, J.

ON PETITION FOR WRIT of CERTIORARI

SUAREZ, J.

Carlos Gutierrez, and CMG Entertainment, et al., a consortium of Columbian entertainment organizations, plaintiffs below, seek certiorari review of an order granting Defendant Paulina Rubio’s and Intervener Plaintiff Link Tours, Inc.’s motion to disqualify Richard Wolfe, Esq. and Wolfe Law Miami, P.A. (“Wolfe”) as counsel for the plaintiffs. We quash the trial court’s order and remand with instructions for the reasons set forth below.

This matter arises out of the plaintiffs’ lawsuit against Rubio for breach of contract. In 2010, the plaintiffs engaged attorney Wolfe and his firm to file suit against Rubio in state court, alleging she breached a contract for an entertainment appearance in 2010. In September 2012, Rubio hired Felipe Restrepo (“Restrepo”) as her personal assistant. She fired him less than two months later, in October 2012. Restrepo then hired Wolfe to represent him in an unrelated claim against Rubio in federal court.

*321The defendant’s and intervener’s emergency motion to disqualify Wolfe was filed in November 2012. They asserted in the motion that Mr. Wolfe and his law firm obtained confidential and privileged information from Restrepo regarding the underlying litigation between the parties. The motion asserts that, during his two-month employment as a personal assistant for Rubio, Restrepo was present during litigation strategy meetings between Rubio and her attorney, had access to papers that are attorney-client privileged, and that he divulged the contents of these conversations and documents to Mr. Wolfe. Mr. Wolfe denies receiving any information from Restrepo pertaining to the instant litigation and Restrepo claims to have no knowledge as to the instant litigation.1

The underlying litigation was set for trial in January 2013. On an emergency basis, the trial court conducted a non-evi-dentiary hearing to consider the conflicting affidavits and argument of counsel on the motion to disqualify the plaintiffs’ counsel. In a lengthy order, in which the trial court made findings of fact, the court granted the motion disqualifying Mr. Wolfe from representing the plaintiffs in the underlying litigation.

The case law uniformly calls disqualification of a party’s lawyer in a civil case a drastic remedy, one that must be employed only in limited circumstances. See Allstate Ins. Co. v. Bowne, 817 So.2d 994, 998-99 (Fla. 4th DCA 2002) (citing Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721-22 (7th Cir.1982) (“[W]e also note that disqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose except when absolutely necessary. A disqualification of counsel ... also serves to destroy a relationship by depriving a party of representation of their own choosing. ... [S]uch motions should be viewed with extreme caution for they can be misused as techniques of harassment.”)); see also Transmark, U.S.A., Inc. v. State Dep’t of Ins., 631 So.2d 1112, 1116 (Fla. 1st DCA 1994) (disqualification of an attorney is an extraordinary remedy and must be sought with “reasonable promptness .... to prevent ... using the motion as a tool to deprive [the movant’s] opponent of counsel of his choice after completing substantial preparation of the case”). This restraint is also quite in keeping with the very narrow role of common law certiorari prior to judgment in civil cases. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987) (pretrial certiorari relief in civil cases is an “extraordinary remedy” that “should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.”), superseded by statute on other grounds, § 768.72, Fla. Stat. (1986), as recognized in Henn v. Sandler, 589 So.2d 1334, 1334 (Fla. 4th DCA 1991).

Disqualification cases require the court to make a factual determination that 1) there is proof that confidential information was actually disclosed and, 2) that this information gave the non-moving party an unfair tactical advantage. See Whitener v. First Union Nat’l Bank, 901 So.2d 366 (Fla. 5th DCA 2005); Plaza Resorts v. Janus Amer. Grp., 811 So.2d 850 (Fla. 4th DCA 2002); Strawcutter v. Strawcutter, 101 So.3d 417 (Fla. 5th DCA 2012). See also Stewart v. Bee-Dee Neon & Signs, Inc., 751 So.2d 196, 201 (Fla. 1st DCA 2000) (discussing the hiring of non-lawyer personnel with knowledge of client confidences). Cf. City of Apopka v. All Corners, Inc., 701 So.2d 641, 644 (Fla. 5th *322DCA 1997) (holding that disqualification is required only when there is evidence that the law firm obtained confidential information, thereby gaining an unfair advantage, from its new personnel).

Here, no testimony was presented, only affidavits, and those affidavits disagree on such material issues as whether Restrepo had access to and did obtain any proprietary information, whether such information was passed on to Wolfe, and if so, whether that information gave Wolfe an unfair tactical advantage in the litigation between the plaintiffs and Rubio. As such, the trial court departed from the essential requirements of law by considering solely the conflicting affidavits and by not conducting an evidentiary hearing to resolve the conflicting factual issues.2 See Plaza Resorts, 811 So.2d at 851. We therefore quash the trial court’s order granting disqualification and remand the cause for an evidentiary hearing.

CERTIORARI GRANTED, ORDER QUASHED; AND CAUSE REMANDED.


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Cited By

  • Flexfunds Holdings, LLC v. Rivero, 341 So. 3d 478 (Fla. 3d DCA 2022)
  • Global Lab P'rs, LLC v. Patroni Enters., LLC, 327 So. 3d 453 (Fla. 1st DCA 2021)
    …work done by either side’s counsel. Appellees did not waive disqualification. We recognize the disqualification of opposing party’s counsel is an extreme maneuver that cuts to the very heart of the litigation at hand. See Gutierrez v. Rubio, 126 So. 3d 320, 321 (Fla. 3d DCA 2013). It should be met with a degree of skepticism even if filed in a more timely manner than the motion here. We do not endorse an eight-month delay in filing a motion to disqualify or assert that an eight-month delay in an…
  • Alters v. Villoldo, 230 So. 3d 115 (Fla. 3d DCA 2017)
    …d the motion. Alters and his firm timely filed a petition for writ of certiorari. Analysis “[Djisqualification of a party’s lawyer in a civil case [is] a drastic remedy, one that must be employed only in limited circumstances.” Gutierrez v. Rubio, 126 So. 3d 320, 321 (Fla. 3d DCA 2013). “Motions for disqualification are . generally viewed with skepticism because disqualify cation of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes.…

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