Scott v. Higginbotham

• Decision Date: 11 October 2002
• Docket Number: No. 2D02-993.,2D02-993.
• Citation: 834 So.2d 221
• Parties: Christine M. SCOTT, individually, d/b/a Ricky's Coast to Coast Nets, Inc., a dissolved Florida corporation; Roger E. Douberly, individually, d/b/a Ricky's Coast to Coast Nets, Inc., a dissolved Florida corporation; and Alton Clark Rogers, Jr., jointly and severally, Petitioners, v. Nancy HIGGINBOTHAM, as Personal Representative of the Estate of Roy Higginbotham, deceased, Respondent.
• Court: Florida District Court of Appeals

834 So.2d 221

Christine M. SCOTT, individually, d/b/a Ricky's Coast to Coast Nets, Inc., a dissolved Florida corporation; Roger E. Douberly, individually, d/b/a Ricky's Coast to Coast Nets, Inc., a dissolved Florida corporation; and Alton Clark Rogers, Jr., jointly and severally, Petitioners, v. Nancy HIGGINBOTHAM, as Personal Representative of the Estate of Roy Higginbotham, deceased, Respondent.

No. 2D02-993.

District Court of Appeal of Florida, Second District.

October 11, 2002.

Valeria Hendricks of Davis & Harmon, P.A., Tampa; Sidney M. Crawford of Sidney M. Crawford, P.A., Lakeland; and Benjamin H. Hill, IV, of Akerman, Senterfitt & Edison, P.A., Tampa, for Petitioners.

George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Respondent. STRINGER, Judge.

Christine M. Scott, Roger E. Douberly, and Alton Clark Rogers, Jr., (collectively "Scott") seek certiorari review of the trial court's order denying their motion to disqualify co-counsel for Nancy Higginbotham. Because the trial court's order did not depart from the essential requirements of the law, we deny the petition.

Higginbotham hired Vaka, Larson & Johnson, P.L. ("the Vaka firm") for posttrial work on a personal injury case in which Higginbotham was the plaintiff and Scott was the defendant. Thereafter, Scott filed and served a motion to disqualify the Vaka firm as Higginbotham's co-counsel, alleging that the Vaka firm had recently hired attorney Andrew Klymenko as an associate. Scott maintained that they would be prejudiced because Scott had an attorney-client relationship with Klymenko when he was an associate with Akerman, Senterfitt & Edison, P.A. ("the Akerman firm") in the underlying personal injury action.

In support of the motion to disqualify, Scott filed an affidavit from attorney Benjamin H. Hill, IV, of the Akerman firm in which Hill stated that Klymenko participated in the defense of Scott. According to Hill, Klymenko's participation in the litigation included attending the depositions of two witnesses. Attached to Hill's affidavit were redacted copies of the Akerman firm's billing records reflecting the time and services Klymenko performed in Scott's case.

In response, the Vaka firm filed the affidavit of Klymenko, which stated, in pertinent part:

(6) I do not have any information relating to the representation of [Scott] that could be used to their disadvantage during litigation of the above-styled case or that has not become generally known as a matter of public record.

(7) I do not have any confidential information that would assist my current employer, [the Vaka firm], in acting as co-counsel for [Higginbotham] for the limited purpose of litigating the post-trial motions and/or an appeal, if filed.

(8) I did not develop and/or control any legal strategy in the above-styled case, nor review the strategy of others.

In his affidavit, Klymenko explained that his involvement in the case was limited to 11.6 billable hours. During that time, Klymenko traveled to conduct depositions of two police officers, performed legal research on the dangerous instrumentality doctrine, and answered basic insurance coverage questions regarding Scott's policy.

At the hearing on the motion, Hill testified that client confidences were disclosed during the course of office discussions among the attorneys about Scott's case. When asked whether he had any recollections of a specific client confidence Klymenko "knows," Hill replied that Klymenko had been included in conversations around the office about the case, but he could not specifically recall what conversations may have been shared when Klymenko was present.

The trial court subsequently denied Scott's motion to disqualify the Vaka firm. The trial court ruled that there was no evidence that Klymenko had knowledge of any confidential information from the underlying litigation at the Akerman firm. Scott filed a timely petition for certiorari with this court seeking review of the trial court's order. We have jurisdiction. See Pinebrook Towne House Ass'n, Inc. v. C.E. O'Dell & Assocs., Inc., 725 So.2d 431 (Fla. 2d DCA 1999).

The disqualification of a party's attorney is "an extreme remedy and should be employed sparingly." Id. at 433. In order to merit certiorari, the order must depart from the essential requirements of the law causing material injury to the petitioner for the remainder of the proceedings and leaving no adequate appellate remedy. Id.

Cases involving imputed disqualification of a law firm based on the prior representation of a newly associated attorney are governed by rule 4-1.10(b) of the Rules Regulating the Florida Bar. Gaton v. Health Coalition, Inc., 745 So.2d 510, 511 (Fla. 3d DCA 1999); Koulisis v. Rivers, 730 So.2d 289, 293 (Fla. 4th DCA 1999); see also Graham v. Wyeth Labs. Div. of Am. Home Prods. Corp., 906 F.2d 1419, 1421-22 (10th Cir.1990) (applying the Kansas Supreme Court version of Model Rule 1.10(b), which mirrors rule 4-1.10(b)).

Rule 4-1.10(b) provides

(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 rules 4-1.6 and 4-1.9(b) that is material to the matter.

Rule 4-1.6(a) states that "[a] lawyer shall not reveal information relating to representation of a client," subject to some stated exceptions. Rule 4-1.9(b) provides that a lawyer who formerly represented a client shall not thereafter "use...