Kusch v. Ballard, 94-0783
| Decision Date | 09 November 1994 |
| Docket Number | No. 94-0783,94-0783 |
| Citation | 645 So.2d 1035 |
| Parties | 19 Fla. L. Weekly D2357 Robert E. KUSCH, Donald A. Hopper and Virginia M. Hopper, Petitioners/Cross-Respondents, v. James Troy BALLARD a/k/a Jimmy Ballard, Respondent/Cross-Petitioner. |
| Court | Florida District Court of Appeals |
Petition and cross-petition for writ of certiorari to the Circuit Court of Indian River County; Charles E. Smith, Judge.
Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Theodore W. Herzog, P.A., Vero Beach, for petitioners, cross-respondents.
Marjorie Gadarian Graham, Marjorie Gadarian Graham, P.A., West Palm Beach, for respondent, cross-petitioner.
By petition and cross-petition for writ of certiorari we are asked to review an order of the trial court disqualifying counsel for both parties in a pending lawsuit. We grant both the petition and the cross-petition, and quash both orders disqualifying counsel in the instant case. 1
The facts of the case are set out in Judge Stevenson's opinion.
There are two issues, the first being whether the inadvertent event described in Judge Stevenson's opinion constituted a waiver of the attorney-client relationship. He and I agree that it did not; thus the subject letter was and is a privileged communication.
The second issue is whether either or both attorneys should have been disqualified by the trial court. Judge Farmer and I agree that neither should be disqualified, but some of our reasons differ. We further agree that General Accident Insurance Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986), should not apply to this case. My view is that the facts in that case were so unique and, hopefully, so non-recurring that the decision should be limited to its facts.
As Judge Farmer's opinion points out, if we permit the receiving lawyer's disqualification, an unethical lawyer could intentionally fax a privileged communication to a formidable opponent, claim inadvertence, and successfully have the lawyer disqualified. Moreover, we are not certain if the information was revealed by the lawyer to the client, particularly if the lawyer believed the information was privileged and received inadvertently. Finally, whatever the receiving lawyer's client could legitimately do with the information, he could also do without it.
As for the sending lawyer, there is no need to deprive a client of counsel because of this inadvertence.
I should first admit straightaway to a certain distaste for the practice of judges disqualifying lawyers for parties in civil cases. There has never been a persuasive theoretical basis demonstrated to my satisfaction for such an extraordinary remedy. Nothing in any constitutional provision, statute or rule of practice or procedure purports to repose such a power in civil trial judges. 2 Moreover, the remedy strikes at the heart of one of the most important associational freedoms that a person may have--the right to choose one's own lawyer. Even if the basis for disqualification lies in a violation of the lawyer's ethical code, I do not understand why the disciplinary process of The Florida Bar is not exclusively authorized to grant such relief.
Nor has anyone shown why an ordinary malpractice or other damages action against an offending attorney is not the more appropriate remedy. In this case the offending lawyer is said to have negligently disclosed a privileged communication to his client's adversary in a pending legal action. 3 One remedy for this act might be to mulct the offending lawyer in damages if the client thereby suffers monetary loss. To order disqualification has all the attributes of applying an equitable remedy where the legal remedy of damages is wholly suitable to the purpose. One might just as well shoot the patient rather than treat the wound--or junk the car rather than fix the flat tire.
I recognize that our supreme court as well as this very court have placed their stamps of approval on judicial disqualification of civil trial lawyers, in some circumstances. See State Farm Mutual Automobile Ins. Co. v. K.A.W., 575 So.2d 630 (Fla.1991); Birdsall v. Crowngap Ltd., 575 So.2d 231 (Fla. 4th DCA), cause dism'd, 581 So.2d 1307 (Fla.1991); and General Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986). K.A.W. merely stands for the proposition that the remedy is proper in cases--unlike the current one--where a lawyer represents multiple parties in multiple cases with a common core of facts and issues, and client confidences can be used unfairly in the separate litigation. General Accident, with which I entirely disagree but am bound to follow, addresses the situation where client confidences are disclosed by the negligent act of the trial judge; it does not, as here, involve a "negligent" disclosure by one party's lawyer to the opposition lawyer.
Neither of the cases comes close to embracing the facts involved in the present disqualification. Although I recognize the surface plausibility (especially, given the internal logic of General Accident ) and the good faith of judges of this court in feeling bound to apply them here, I cannot agree to do so. I would limit them to their precise facts and not extend them to disqualify civil trial lawyers whenever we perceive that one side has acquired some informational advantage or other arising from conduct of a party's lawyer. The extension of this truly extraordinary remedy to the facts here would simply be more than I could bear.
Indeed, I should think that--even for enthusiastic advocates of the remedy--the facts of this case would present an unusually ill advised premise to extend the measure. Put simply, one side's lawyer has negligently transmitted a fax communication to the other side's lawyer containing information that has nothing to do with the substance of the dispute but is tactically advantageous to the receiving lawyer's client. 4 The trial court has remedied the situation by disqualifying the entirely innocent receiving lawyer. For doing what? Reading his fax mail? Why must the receiving lawyer's client lose his entirely permissible choice of lawyer because of the neglect (or, perhaps, purposeful act) of the adversary's lawyer? I therefore entirely agree with Judge Glickstein in vacating the order disqualifying the receiving lawyer.
This situation is simply too amenable to manipulation by vexed and unscrupulous adversaries bent on removing an adept foe to equalize the score. We should understand that we would be handing those without scruple a powerful and tempting tool, allowing them to block the opposing lawyer out of the game. It would be to disqualify Don Shula and thus punish the Miami Dolphins, simply because he has innocently perceived the plays called by the opposing team's quarterback. I do not believe that judicial disqualification of trial lawyers should be used for this end, any more than I believe that the referees at football games should choose who the coaches or players will be. 5
I therefore concur with the court's certiorari review and vacating the orders disqualifying the lawyers in this case.
I must respectfully dissent in part from the majority opinion because although I join in granting the cross-petition, I would deny the petition.
The essential facts are not in dispute. Defendant's attorney prepared a letter along with a proposed motion to withdraw and addressed the letter to one of his clients. A secretary of defendant's attorney inadvertently transmitted by facsimile the letter and motion to plaintiffs' counsel. The cover sheet indicated that the information contained in the facsimile message was attorney privilege and confidential information intended only for the use of the individual named. Plaintiffs' attorney read portions of the letter. Immediately upon realizing that the letter had been inadvertently transmitted, plaintiffs' attorney stopped reading it, notified defendant's counsel and returned the letter.
Plaintiffs then sought production of the letter for the purpose of using it as evidence against the defendant and claimed that defendant waived any attorney-client privilege by the inadvertent disclosure. Plaintiffs also claimed that the letter contained statements revealing a conspiracy to abuse the judicial system or commit a fraud on the court. In response, defendant moved to disqualify plaintiffs' counsel based upon the inadvertent transmittal and receipt of the letter.
The trial court held a hearing on plaintiffs' motion for production and defendant's motion for disqualification. After an in camera review of the letter, the court determined that the letter was protected by the attorney-client privilege. The court found that the letter contained information concerning the status of the lawsuit and provided plaintiffs' attorney with an unfair advantage in the litigation. The court further determined that there was nothing in the letter to indicate any sham or fraudulent pleadings as asserted by plaintiffs. The court concluded that the attorney-client privilege had not been waived by the accidental disclosure. The trial court disqualified plaintiffs' attorney based on unfair advantage, and also disqualified defendant's counsel. The parties were given thirty days in which to obtain new counsel, and discovery and pleadings were abated until new counsel could be obtained. These petitions followed.
I do not believe that the trial court departed from the essential requirements of law in disqualifying plaintiffs' counsel. The trial court's ruling was largely predicated on General Accident Insurance Co....
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