Akrey v. KINDRED NURSING CENTERS EAST, LLC

• Decision Date: 21 February 2003
• Docket Number: No. 2D02-2944.,2D02-2944.
• Citation: 837 So.2d 1142
• Parties: Selina AKREY, as Next Best Friend of Timothy Barber, Petitioner, v. KINDRED NURSING CENTERS EAST, L.L.C. f/k/a Vencor Nursing Centers East, L.L.C. d/b/a Bay Point Nursing Pavilion, Vencor, Inc., Ventas, Inc., and Kindred Healthcare Operating, Inc., f/k/a Vencor Operating, Inc., Respondents.
• Court: Florida District Court of Appeals

837 So.2d 1142

Selina AKREY, as Next Best Friend of Timothy Barber, Petitioner, v. KINDRED NURSING CENTERS EAST, L.L.C. f/k/a Vencor Nursing Centers East, L.L.C. d/b/a Bay Point Nursing Pavilion, Vencor, Inc., Ventas, Inc., and Kindred Healthcare Operating, Inc., f/k/a Vencor Operating, Inc., Respondents.

No. 2D02-2944.

District Court of Appeal of Florida, Second District.

February 21, 2003.

John Calhoun Bales, David B. Weinstein, Kimberly S. Mello of Bales Weinstein, Tampa, for Petitioner.

Ronald E. Bush and H. Hamilton Rice, III, of Bavol, Bush & Sisco, P.A., Tampa, for Respondents.

CASANUEVA, Judge.

Selina Akrey, as next best friend of Timothy Barber ("Barber"), sued various entities in this case involving injuries Mr. Barber sustained at a nursing home owned and operated by one of the defendants (referred to in this opinion collectively as "Vencor"). After filing its answer and affirmative defenses, Vencor moved to disqualify the plaintiff's law firm, Bales Weinstein, on the ground that one of its attorneys, Scott DiStasio, had formerly represented Vencor while associated with the firm of Shear, Newman, Hahn and Rosencranz, P.A. Upon consideration of affidavits and arguments of counsel, the trial court granted Vencor's motion and disqualified the Bales Weinstein firm from representing Barber in this matter. Barber has now sought a writ of certiorari in this court. Because the trial court's order departed from the essential requirements of the law, we grant certiorari and quash the disqualification order.

Disqualification of counsel is a matter uniquely suited for review by certiorari because it is an extraordinary remedy that should be used most sparingly. Legion Ins. Co. v. Bank of America, N.A., 807 So.2d 690 (Fla. 2d DCA 2002) (citing Therriault v. Berghmans, 788 So.2d 1119 (Fla. 2d DCA 2001)). The effect is for a party to be denied counsel of its choice, a material injury without appellate remedy. Therefore, upon a showing that the order departed from the essential requirements of law, a reviewing court can issue the writ. See Pinebrook Towne House Ass'n v. C.E. O'Dell & Assocs., 725 So.2d 431 (Fla. 2d DCA 1999).

At the outset, we note that Vencor has not alleged that Mr. DiStasio is personally representing Barber. Rather, this is a case of imputed disqualification. If any of a firm's lawyers would be disqualified, all must be disqualified under this ethical precept. See Matluck v. Matluck, 825 So.2d 1071 (Fla. 4th DCA 2002).

In particular, this matter is governed by rule 4-1.10(b) of the Rules Regulating the Florida Bar, which states:

(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rule 4-1.6 and 4-1.9(b) that is material to the matter.

Here, a Bales Weinstein lawyer previously represented a client—Vencor—whose interests are adverse to Barber. However, the underlying litigation of this case is not the same litigation in which Mr. DiStasio previously represented Vencor, so an issue is raised whether Barber's suit against Vencor is a "substantially related matter." Furthermore, it must be shown that Mr. DiStasio not only received protected client confidences but also that the confidential information was "material to [this] matter."

The burden of proof does not lie entirely with either party. First, as the moving party, Vencor's lawyers must establish a prima facie case for disqualification by showing that Mr. DiStasio acquired confidential information during his prior representation of Vencor in a substantially related case. If it can carry that burden, the Bales Weinstein firm must then show that Mr. DiStasio has no actual knowledge of any confidential information material to this case. See Scott v. Higginbotham, 834 So.2d 221 (Fla. 2d DCA 2002) (citing Gaton v. Health Coalition, Inc., 745 So.2d 510, 511 (Fla. 3d DCA 1999); Koulisis v. Rivers, 730 So.2d 289, 292 (Fla. 4th DCA 1999)).

The comments to the Rules Regulating the Florida Bar provide guidance in making these determinations. The Bar recognizes that an individual lawyer is obligated to decline representation "involving positions adverse to a former client arising in substantially related matters." R. Regulating Fla. Bar 4-1.10 cmt. That duty does not extend to every lawyer in the firm with which he or she is newly associated, however, unless the representation involves "the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." R. Regulating Fla. Bar 4-1.9(a). In those situations the precepts of rule 4-1.9(a) are of paramount importance. R. Regulating Fla. Bar 1.10 cmt. "Thus, if a lawyer left [one] firm for another, the new affiliation would not preclude the firms involved from continuing to represent clients with adverse interests in the same or related matters so long as the conditions of rule 4-1.10(b) ... concerning confidentiality have been met." Id. As the comment to rule 4-1.9(a) observes, "a lawyer who recurrently handled a type of problem for a former client...