Bedoya v. Aventura Limousine & Transp. Serv., Inc., 11–24432–CIV.

• Decision Date: 16 May 2012
• Docket Number: No. 11–24432–CIV.,11–24432–CIV.
• Citation: 861 F.Supp.2d 1346
• Parties: Emigdio BEDOYA, et al., Plaintiffs, v. AVENTURA LIMOUSINE & TRANSPORTATION SERVICE, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

861 F.Supp.2d 1346

Emigdio BEDOYA, et al., Plaintiffs,

v.AVENTURA LIMOUSINE & TRANSPORTATION SERVICE, INC., et al., Defendants.

No. 11–24432–CIV.

United States District Court,

S.D. Florida.

May 16, 2012.

Angeli Murthy, Richard Bernard Celler, Steacey Schulman, Morgan & Morgan, P.A., Davie, FL, for Plaintiff.

Chris Kleppin, Kristopher W. Zinchiak, Glasser, Boreth & Kleppin, P.A., Plantation, FL, Jason Scott Coupal, Aventura, FL, for Defendants.

Emigdio Bedoya, Miami, FL, pro se.

Jason Scott Coupal, Aventura Limousine & Transportation Service, Inc., Aventura, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE came before the Court on Defendants' Motion to Disqualify Plaintiff's Counsel, Richard Celler, Esq. (“Celler”) (“Motion to Disqualify Celler”) [ECF No. 47], and Defendants' Motion to Disqualify Plaintiff's Counsel, Stacey Schulman, Esq. (“Schulman”) and the Law Firm of Morgan & Morgan, P.A. (“Morgan & Morgan”) (“Motion to Disqualify Morgan & Morgan”) [ECF No. 82]. Plaintiff, Emigdio Bedoya (“Bedoya” or “Plaintiff”), through Celler, ¹ filed a Class Action Complaint (“Complaint”) [ECF No. 1] on December 9, 2011, on behalf of himself and other employees and former employees similarly situated, against Defendants, Aventura Limousine & Transportation Services, Inc. (“Aventura”), Scott Tinkler (“Tinkler”), Neil Goodman (“Goodman”), and Ron Sorci (“Sorci”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Defendants now ask the Court to disqualify Celler, Schulman, and Morgan & Morgan. The parties have submitted abundant briefing and evidence to the Court on the Motion to Disqualify Celler and Motion to Disqualify Morgan & Morgan (collectively, “Motions”).² The Court has carefully reviewed the Motions, the parties' submissions, the record, and the applicable law.

I. LEGAL STANDARD

Under Florida law, “[a]n order involving the disqualification of counsel must be tested against the standards imposed by the Rules of Professional Conduct.” Morse v. Clark, 890 So.2d 496, 497 (Fla. 5th DCA 2004) (citing City of Lauderdale Lakes v. Enter. Leasing Co., 654 So.2d 645 (Fla. 4th DCA 1995); Cazares v. Church of Scientology of Cal., Inc., 429 So.2d 348 (Fla. 5th DCA 1983)). “The party moving to disqualify counsel bears the burden of proving the grounds for disqualification.” Armor Screen Corp. v. Storm Catcher, Inc., 709 F.Supp.2d 1309, 1310 (S.D.Fla.2010) (citing In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir.2003)). Faced with a motion to disqualify, a court must “be conscious of its responsibility to preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests, which include the litigant's right to freely choose counsel.” Woods v. Covington Cnty. Bank, 537 F.2d 804, 810 (5th Cir.1976). “Disqualification of one's chosen counsel is a drastic remedy that should be resorted to sparingly.” Armor Screen, 709 F.Supp.2d at 1310 (citing Norton v. Tallahassee Mem'l Hosp., 689 F.2d 938, 941 n. 4 (11th Cir.1982)). “Because a party is presumptively entitled to the counsel of his choice, that right may be overridden only if compelling reasons exist.” BellSouth, 334 F.3d at 961 (internal quotation marks and citations omitted). Furthermore, “[s]uch motions are generally viewed with skepticism because ... they are often interposed for tactical purposes.” Yang Enters., Inc. v. Georgalis, 988 So.2d 1180, 1183 (Fla. 1st DCA 2008) (internal quotation marks, brackets, and citations omitted).

II. ANALYSIS

Defendants state that since filing this action, Celler “has systematically engaged in inappropriate and offensive behavior,” including violations of the Florida Bar Rules of Professional Conduct (“Florida Bar Rule [s]”) 4–1.6, 4–4.2, 4–4.4, and 4–8.4. (Mot. to Disqualify Celler 1). Defendants further argue that Schulman and the entire firm of Morgan & Morgan must be disqualified on the additional basis of a violation of Florida Bar Rule 4–7.4. (Mot. to Disqualify Morgan & Morgan 8). Defendants'arguments for the disqualification of Schulman and Morgan & Morgan largely mirror those for Celler's disqualification, with few exceptions. Defendants contend that Schulman is Celler's “underling, and takes all of her orders from him.” (Mot. to Disqualify Morgan & Morgan 1). Defendants state:

[W]hile much of [the Motion to Disqualify Morgan & Morgan] concerns Celler's actions (though Schulman is copied or a recipient of many of the e-mails), because his actions as managing partner bind the firm, Ms. Schulman and the firm should be disqualified, so as the [Motion to Disqualify Morgan & Morgan] is read [sic], “Celler” should be interpreted to mean Celler, Schulman, and Morgan & Morgan, P.A.

( Id. 2). Needless to say, the Court will not adopt this perplexing shorthand, which Defendants themselves apply less-than-consistently throughout their briefs on this matter. Rather, the Court shall attempt to discuss Celler, Schulman, and Morgan & Morgan separately, with respect to each purported basis for disqualification. The Court shall refer to “Plaintiff's counsel” where this distinction is not necessary. The Court addresses the parties' arguments on each basis for disqualification in turn, and first determines whether the various Florida Bar Rules invoked have been violated. The Court then turns to the separate issue of whether these violations merit disqualification, and of whom.

A. Florida Bar Rule 4–4.2

Defendants contend Plaintiffs counsel should be disqualified due to ex parte communications with multiple individuals in violation of Florida Bar Rule 4–4.2, which provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer....

Fla. Bar R. Prof'l Conduct 4–4.2(a). The Court examines the parties' arguments regarding each individual with whom Plaintiff's counsel allegedly had an ex parte communication.

1. Padurjan

Defendants contend Celler violated Florida Bar Rule 4–4.2 when he communicated with Sasa Padurjan (“Padurjan”) regarding the latter's prior cases against Aventura in this District.³ ( See Mot. to Disqualify Celler 9). According to Defendants, Defendants' former counsel, Chris Kleppin (“Kleppin”),⁴ represented Padurjan in these previous matters, “and therefore Kleppin and Padurjan enjoy an ongoing attorney-client relationship with respect to the matter,” with activity in one of Padurjan's cases as recently as September 2011. ( Id. & 3) (emphasis added). Defendants further assert that “the way in which Celler did it is particularly reprehensible, because he invaded the attorney-client relationship Kleppin enjoyed with Padurjan solely in order to manufacture an argument to attempt to get Kleppin disqualified—by soliciting Padurjan to becomea witness by falsely suggesting to Padurjan that he may have some claim against Aventura.” ( Id. 10). Plaintiff has submitted an affidavit that Plaintiffs counsel had Padurjan sign (“Padurjan Affidavit”) [ECF No. 99–2]. According to Defendants, the content of the Padurjan Affidavit itself is proof that Celler violated the attorney-client relationship between Kleppin and Padurjan. ( See Mot. to Disqualify Celler 10).

Plaintiff states Padurjan reached out to Morgan & Morgan, not the other way around. ( See Resp. 4). Plaintiff contends the attorney-client relationship between Padurjan and Kleppin is not ongoing, and the Padurjan Affidavit states Padurjan was not represented by counsel when Padurjan contacted Morgan & Morgan. ( See id.). Plaintiff further cites an email communication by Padurjan showing that he did not consider himself Kleppin's client. ( See id. 5 (citing Mar. 4, 2012 Email Exchange, Resp. Ex. 3 [ECF No. 99–3] )). In this email exchange, Schulman writes to Padurjan, in part:

Just to be clear, is Chris Kleppin still your attorney? He's recently referred to you as both a current client and a former client in his efforts to stay on the Aventura cases but what really controls is what you believe the relationship to be. When you contacted us a few weeks ago, it seemed apparent to me that you were not Kleppin's client nor had you been for awhile but—to be safe—I wanted to verify that I was not making an incorrect assumption. Please confirm.

(Mar. 4, 2012 Email Exchange). Padurjan replied, “He is NOT my attorney.” ( Id.).

The parties, as well as Padurjan, have all taken the position that Padurjan is no longer Kleppin's client. The Court understands Defendants now to argue that while the relationship no longer continues, there are certain attorney-client privileges attaching to Kleppin's previous representation of Padurjan. This was the basis for the Court's finding that Kleppin had an impermissible conflict of interest in representing Defendants in this case, which is substantially related to Padurjan's matter. ( SeeApr. 30, 2012 Order 16).⁵ However, all parties and Padurjan agree that Padurjan is currently an unrepresented third party in this action.

Since Padurjan is not “represented by another lawyer in the matter,” Florida Bar Rule 4–4.2(a) does not apply to Plaintiff's counsel's contact with him. Fla. Bar R. Prof'l Conduct 4–4.2(a). Rather, potentially more relevant is Florida Bar Rule 4–4.4, which states, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.” Fla. Bar R. Prof'l Conduct 4–4.4(a). Thus, lawyers are subject to “legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.” Id. cmt. Defendants, however, have not identified any legal rights of Padurjan that were violated...