Nissan Motor Corp. in U.S.A. v. Orozco, 91-3070
| Decision Date | 04 March 1992 |
| Docket Number | No. 91-3070,91-3070 |
| Citation | 595 So.2d 240 |
| Parties | , 17 Fla. L. Weekly D638 NISSAN MOTOR CORPORATION IN USA, Petitioner, v. Carman OROZCO, as personal representative of the Estate of Jorge Orozco, deceased, Respondent. |
| Court | Florida District Court of Appeals |
Sharon L. Stedman and Craig P. Niedenthal of Rumberger, Kirk, Caldwell & Wechsler, Orlando, for petitioner.
Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, and Sheldon J. Schlesinger, P.A., Fort Lauderdale, for respondent.
Petitioner, Nissan Motor Corporation in U.S.A. (Nissan), seeks review of an order of the circuit court that denied its motion to disqualify the respondent's law firm in a wrongful death case therein pending.
The respondent filed a wrongful death case in the circuit court to recover damages arising out of the alleged wrongful death of Jorge Orozco as a result of an automobile accident involving the operation of a 1981 Datsun automobile. The respondent employed the law firm of Sheldon J. Schlesinger, P.A., to prosecute the case and the petitioner, Nissan, employed the firm of Rumberger, Kirk, Caldwell, Cabaniss, Burke & Weschler (Rumberger) to defend it. During the earlier stages of the litigation, the Rumberger firm noticed the discovery depositions of approximately eight different witnesses, most of whom were the custodians of records of decedent's employers and institutions wherein the decedent had been hospitalized. Craig P. Niedenthal, Esquire, a partner in the Rumberger firm in the Orlando office, was in charge of the day-to-day activities involving the case. He requested Paul Buechele, Esquire, an associate of the firm, working in their Miami office, to handle the aforesaid depositions for the firm; in due course, the depositions were taken by Mr. Buechele. Later Buechele left the Rumberger firm and became an associate in the Schlesinger firm. Several months after Buechele's departure from Rumberger, the respondent set a hearing on a motion to adopt the discovery depositions from a federal court case for use in this pending state court case. 1 By this time Buechele had joined the Schlesinger firm that represents the respondent herein. The first notice the petitioner, or its counsel, had of Buechele's association with the Schlesinger firm was when Buechele appeared at the motion hearing on behalf of the respondent. Thereafter, Rumberger, on behalf of the petitioner, moved to disqualify the Schlesinger firm as counsel for the respondent herein, based upon the apparent conflict of interest and the alleged violation of well established Florida law and the Rules Regulating The Florida Bar. In support of its motion, petitioner filed the affidavits of Niedenthal and a paralegal, Laraine Richmond, employed by the Rumberger firm. Niedenthal stated that he had several telephone conversations with Buechele regarding the case, including matters of strategy, theories of defense, and other confidential communications. The Richmond affidavit stated that Buechele had full access to the Rumberger file for the subject litigation during the time he conducted the depositions.
As a result of the filing of the disqualification motion, the Schlesinger firm terminated Buechele as an associate. Furthermore, respondent filed the affidavit of Paul Buechele, in which he asserts that, at no time during his employment with the Rumberger firm, did anyone discuss any aspects of the case with him, other than a telephone request on one occasion when Niedenthal asked him to take the depositions in Miami, referred to above. The depositions, he says, were routine discovery of various records in order to qualify them for admission at trial. He was never given the file or any part of it, nor did he ever see the file. He also flatly denies Niedenthal's statements about the several calls to him or that any strategy regarding the case was discussed or that any confidential information concerning the case was imparted to him. The affidavit goes on to state that, since joining the Schlesinger firm, he was not informed of any facts or matters pertaining to the case, except one discussion with Jack Vital, an attorney in the Schlesinger firm. That discussion pertained only to his attending the motion hearing to adopt the discovery taken in the federal case for use in this case. In sum, Buechele asserts that no discussion of the issues, or other confidential matters, ever took place.
Upon the issue drawn, the trial court conducted a hearing and found that Rule 4-1.10 of the Rules Regulating the Florida Bar (1991), sets forth the applicable rule for disqualification in this case. He found that Buechele was no longer associated with either Rumberger or Schlesinger. Furthermore, he concluded that Buechele "handled rather routine and perfunctory assignments as a junior associate," in representing the parties and that he never acquired confidential and other protected information during his former employment and that no one at the Schlesinger firm received confidential information from Buechele. Accordingly, the trial court denied the motion for disqualification.
Petitioner now contends in this proceeding that the trial court departed from the essential requirements of law in refusing to disqualify the respondent's counsel. Petitioner argues that the record herein reflects that an attorney-client relationship was shown to exist between Buechele and his former client, thus, giving rise to an irrefutable presumption that confidences were disclosed during the relationship, citing State Farm Mutual Auto Ins. Co. v K.A.W., 575 So.2d 630 (Fla.1991). Furthermore, petitioner argues that the Schlesinger law firm now represents an interest adverse to that of Buechele's former client. Petitioner's argument is that, once it was established that the Rumberger firm represented petitioner while Buechele was an associate with Rumberger and, in fact, worked on this case, an attorney-client relationship existed between Buechele and petitioner. Thereupon, argues petitioner, an irrefutable presumption arose that confidences were disclosed which precluded Buechele, as well as the Schlesinger firm, from representing respondent in the same matter.
Respondent, however, argues that the facts of this case render the irrefutable presumption, and the many cases applying it, inapplicable. In State Farm David Wilkerson was driving a rental car in which his wife and infant daughter were passengers when it was struck by another car. The Wilkersons retained the Schlesinger law firm to represent them and filed suit against the driver of the other vehicle, as well as State Farm, David Wilkerson's uninsured motorist carrier. Subsequently, when it became evident that David Wilkerson may have contributed to the cause of the accident, he discharged the Schlesinger law firm from representing him and retained new counsel. Shortly thereafter Mrs. Wilkerson and her daughter amended their complaint adding David Wilkerson as a defendant. The Schlesinger law firm continued to represent Mrs. Wilkerson in her suit against her husband even though that law firm had previously represented Mr. Wilkerson. Subsequently State Farm filed a motion to disqualify the Schlesinger firm on grounds that Rule 4-1.9 of the Rules Regulating the Florida Bar prevented the firm from representing Mrs. Wilkerson when the same firm previously represented her husband in the same matter with an adverse interest. The Florida Supreme Court agreed and ruled that the Schlesinger firm had to be disqualified. The court recognized that there was an irrefutable presumption that confidences were disclosed between the Schlesinger firm and Mr. Wilkerson.
The respondent argues, and we agree, that State Farm is distinguishable from the instant case because there the same law firm had represented both sides in the same law suit, whereas here the Schlesinger...
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