Can An Attorney Who Represented Me as a Corporate Officer Due Me?

Full question:

I was doing business using license of a company under warble agreement for time of 18 month during that time law firm were representing corporation made me secretory of corporation by adding my name by corporation's presidents instruction. I was secretory for 6 months prior to leaving corporation, now same law firm is representing corporation against me in law suit.since same law firm added me as secretory of corporation and advise me two time during my tenner with same corporation. is it or is not breach of fiduciary duty by law firm under state of Florida law? How judge can allow the same law firm to represent the corporation once i was part of it during the time same law firm made me secretory of corporation suing me? please provide me case and applicable law if you agree with me that law firm should not be allowed to represent. what defiance can i show to judge to do so. Thanks

• Category: Courts
• Subcategory: Attorneys
• Date: 04/07/2025
• State: Florida

Answer:

Please see the following Florida Rules of Professional Conduct:

RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT

A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent; or

(b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.

RULE 4-1.10 IMPUTATION OF CONFLICTS OF INTEREST; GENERAL RULE

(a) Imputed Disqualification of All Lawyers in Firm. While lawyers are associated in a firm, none of them shall knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-1.9 except as provided elsewhere in this rule, or unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(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.

(c) Representing Interests Adverse to Clients of Formerly Associated Lawyer. When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by rules 4-1.6 and 4-1.9(b) that is material to the matter.

(d) Waiver of Conflict. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 4-1.7.

(e) Government Lawyers. The disqualification of lawyers associated in a firm with former or current government lawyers is governed by rule 4-1.11.

See also:

http://www.floridabar.org/divexe/rrtfb.nsf/FV/482043D3FC06842B852571710054B87B

The case law below is provided as general information and not an indication of my opinion on the merits of your claim. I am unable to provide a legal opinion, as this service provides information of a general nature.

MANNING v. COOPER, 981 So.2d 668 (Fla.App. 4 Dist. 2008)
Sylvia MANNING, Petitioner, v. Sabrina B. COOPER, Respondent.
No. 4D08-236.
District Court of Appeal of Florida, Fourth District.
May 21, 2008.

Appeal from the Seventeenth Judicial Circuit Court, Broward
County, Robert A. Rosenberg, J.
Page 669

Diane H. Tutt of Diane H. Tutt, P.A., Davie, for petitioner.

Douglas H. Stein of Anania, Bandklayder, Blackwell, Baumgarten,
Torricella & Stein, Miami, for respondent.

PER CURIAM.

Petitioner Sylvia Manning ("Manning") seeks certiorari review
of the trial court order granting respondent Sabrina B.
Cooper's ("Cooper") motion to disqualify Manning's counsel in a
pending lawsuit against Cooper arising from an automobile
accident in 2002. We grant the petition and quash the order for
reasons outlined below.

Cooper was driving a vehicle which collided with a semi-trailer
Mack truck carrying roof trusses. Manning was a passenger in the
vehicle, as was non-party Falicia Woods ("Woods"). All three
occupants of the Cooper vehicle made claims against the truck
company and were originally represented by Loren Gold ("Gold").
Gold made claims against the truck driver and PIP claims against
Cooper's insurer, State Farm Automobile Insurance Company. State
Farm conducted a fraud investigation of claims against it made
by Cooper, Manning, and Woods, through its Special
Page 670
Investigations Unit (SIU). Gold received copies of those SIU
statements.

Cooper and Woods settled their claims against the truck
company, leaving Manning's claim unresolved. Gold referred
Manning to Lawrence Bohannon ("Bohannon"), an attorney in a
separate law firm who apparently acted as co-counsel in other
cases. Bohannon now represents Manning in the pending lawsuit
against Cooper.

Cooper filed a motion to disqualify Bohannon, alleging that he
had been provided a copy of Cooper's SIU statement, and had
produced a copy of it at arbitration in July 2007. Cooper
alleged that it was discovered during the deposition of Gold
that the SIU statements of all three occupants of the vehicle at
the time of the accident were contained in Cooper's file, which
Gold had brought to his deposition. Gold testified that it was
possible that the Manning file contained the SIU statements of
not only Manning but also of Cooper. Gold sent Manning's file to
Bohannon for him to handle from then on, and he said he did not
review it prior to sending it.

Cooper argued in her motion to disqualify that Bohannon was
precluded from representing Manning because of Gold's alleged
conflict of interest under Florida Rules of Professional Conduct
4-1.9(a) and (b), because of an alleged agency relationship
between Gold and Bohannon, and based upon Bohannon's possession
of her SIU statement. The trial court granted the motion to
disqualify, leading to this certiorari challenge by Manning.

Certiorari lies to review orders on motions to disqualify
counsel. Frank, Weinberg & Black, PA v. Effman,
916 So.2d 971 (Fla. 4th DCA 2005); Whitener v. First Union
Nat'l Bank of Fla., 901 So.2d 366 (Fla. 5th DCA 2005). The
petitioner has the burden to demonstrate that the trial court
order constituted a departure from the essential requirements of
law resulting in material harm of an irreparable nature.
See generally Bared & Co. v. McGuire,
670 So.2d 153 (Fla. 4th DCA 1996).

As we said in Alexander v. Tandem Staffing Solutions,
Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004):

"Disqualification of a party's chosen counsel is an
extraordinary remedy and should only be resorted to
sparingly." Singer Island, Ltd. v. Budget Constr.
Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998);
Vick v. Bailey, 777 So.2d 1005, 1007 (Fla. 2d
DCA 2000). Motions for disqualification are generally
viewed with skepticism because disqualification of
counsel impinges on a party's right to employ a lawyer
of choice, and such motions are often interposed for
tactical purposes. See Evans v. Artek Sys.
Corp., 715 F.2d 788, 791-92 (2d Cir. 1983);
Manning v. Waring, Cox, James, Sklar &
Allen, 849 F.2d 222, 224 (6th Cir. 1988)
(observing that "the ability to deny one's opponent
the services of capable counsel, is a potent weapon").
Confronted with a motion to disqualify, a court must
be sensitive to the competing interests of requiring
an attorney's professional conduct and preserving
client confidences and, on the other hand, permitting
a party to hire the counsel of choice.

Orders on motions to disqualify are reviewed under a standard
of abuse of discretion. See Applied Digital Solutions, Inc.
v. Vasa, 941 So.2d 404 (Fla. 4th DCA 2006); Stewart v.
Bee-Dee Neon & Signs, Inc., 751 So.2d 196, 205 (Fla.
1st DCA 2000). The trial court's discretion is governed by the
controlling legal principles, but the appellate court will not
substitute its judgment for the trial court's express or implied
findings of fact which are supported
Page 671
by competent substantial evidence. Id.

We agree with Manning that disqualification is not required
under rule 4-1.9(a), (b), or any other rule of professional
conduct. Rule 4-1.9 provides:

A lawyer who has formerly represented a client in a
matter shall not thereafter:

(a) represent another person in the same or a
substantially related matter in which that person's
interests are materially adverse to the interests of
the former client unless the former client gives
informed consent; or

(b) use information relating to the representation to
the disadvantage of the former client except as rule
4-1.6 would permit with respect to a client or when
the information has become generally known.

This rule does not apply to Bohannon because he never
represented Cooper. We find no legal or factual support for
Cooper's theory of an agency relationship under which Cooper
tried to extend the rule to him.

We also reject Cooper's argument that rule 4-1.10 imputes a
conflict of interest to Bohannon, as urged by Cooper in her
response to the petition for writ of certiorari, but not argued
in the motion to disqualify. Further, we reject Cooper's claim
that Bohannon was precluded from representing Manning because he
was partners with Robert C. Rogers, who was listed as "of
counsel" to Gold. This was not argued in the motion to
disqualify either, and we find it lacking in evidentiary and
legal support as grounds for disqualification of Bohannon.

As for Cooper's claim that if Bohannon possessed Cooper's SIU
statement, it precluded his representation of Manning, we look
to Applied Digital Solutions, in which this court held
that there was no rule of automatic disqualification any time an
attorney inadvertently obtained documents, even if privileged.
941 So.2d at 408. Instead, the court is to exercise its sound
judgment. Id.

Further, the trial court can take into account whether the
party obtaining the privileged material actually obtained an
unfair advantage. Id. at 409 (citing 5500 N. Corp.
v. Willis, 729 So.2d 508 (Fla. 5th DCA 1999)) (quashing a
trial court order disqualifying counsel where defense counsel
did not obtain an unfair advantage as the information counsel
learned from a plaintiff's investigator revealed nothing
inconsistent with the plaintiff's complaint). Here, the record
did not show an unfair advantage to Manning. Moreover, as
Manning has argued, any possibility of such an advantage could
be resolved by Cooper seeking to preclude the use of the SIU
statement at trial. See Allstate Ins. Co. v. Bowne,
817 So.2d 994 (Fla. 4th DCA 2002).

We reject without further discussion Cooper's other arguments.

Petition Granted. Order of Disqualification Quashed.

FARMER, TAYLOR and HAZOURI, JJ., concur.
YANG v. GEORGALIS, 988 So.2d 1180 (Fla.App. 1 Dist. 2008)
YANG ENTERPRISES, INC., Li-Woan Yang, and Tyng-Lin Yang, Petitioners, v.
Mavis GEORGALIS, Respondent.
No. 1D07-6479.
District Court of Appeal of Florida, First District.
August 7, 2008.
Page 1181

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN
OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Page 1182

John C. Hanson, II, of The Barthet Firm, Miami, for
Petitioners.

Martin A. Fitzpatrick, M. Stephen Turner and Mark E. Walker of
Broad and Cassel, Tallahassee; Fred E. Pearson, Tallahassee, for
Respondent.

THOMAS, J.

We previously denied this petition for writ of certiorari in
our opinion dated April 2, 2008, where Petitioners sought to
disqualify Respondent's law firm, asserting that Broad and
Cassel also represented Petitioners. We also issued an order to
Petitioners and their counsel to show cause why attorney's fees
should not be imposed pursuant to section 57.105(1), Florida
Statutes (2007). We now impose the sanction of attorney's fees
under this statute and write to explain our reasoning.

I. Facts

Since November 2001, Petitioners have been involved in multiple
administrative, civil, and criminal cases related to
Respondent's employment with the Florida Department of
Transportation. Petitioners filed suit against Respondent for
trade secret theft, tortious interference with a business
relationship, and trade libel. In 1999, Petitioners retained
Anthony Palma, an attorney in Broad and Cassel's Orlando office,
for estate planning services. Mr. Palma represented Petitioners
until June 2001.

When Petitioners filed suit against Respondent in November
2001, Respondent retained two attorneys from Broad and Cassel's
Tallahassee office, M. Stephen Turner and Martin Fitzpatrick.
In 2007, more than five years after Mr. Palma's completion of
their estate planning, Petitioners filed a motion to disqualify
Turner, Fitzpatrick, and the Broad and Cassel law firm.

In their motion, Petitioners argued that they have been current
clients of Broad and Cassel since 1999, and they did not realize
until 2007 that the firm represented Respondent. Petitioners
argued that the firm's simultaneous representation of adverse
parties presented a conflict of interest. Petitioners further
asserted that they never consented to the firm's representation
of Respondent in the instant case; therefore, the law firm's
dual representation violates rules 4-1.7 and 4-1.10 of the
Florida Rules of Professional Conduct.

The trial court denied Petitioners' motion to disqualify,
determining that Petitioners are former clients of Broad and
Cassel, not current clients. The trial court's ruling was not
based on Petitioners' status as clients, however, but on waiver.
The court found that, given the extensive ongoing litigation,
Petitioners knew of the purported conflict of interest years
before they moved to disqualify the firm. Because Petitioners
did not move to disqualify Broad and Cassel until 2007, and
because it would have greatly prejudiced Respondent to remove
the firm that had been representing her for six years, the trial
court ruled that Petitioners had waived any claim regarding a
purported conflict of interest. The court found it unnecessary
to reach the disputed factual issue of whether Petitioners had
consented to the dual representation.

Significantly, Petitioners did not seek an evidentiary hearing
to establish the material facts, nor did Petitioners object to
the trial court's factual conclusions regarding their motion.

II. Analysis of Attorney Disqualification Issue

Certiorari is the appropriate remedy to review orders denying a
motion to disqualify counsel. See Zarco Supply
Page 1183
Co. v. Bonnell, 658 So.2d 151, 153 (Fla. 1st DCA
1995). Accordingly, Petitioners had to show that the circuit
court departed from the essential requirements of law and that
this departure resulted in a material injury that cannot be
corrected on post-judgment appeal. See Zarco,
658 So.2d at 153. An error of law is not necessarily a departure from the
essential requirements of law. See, e.g., Rich v.
Fisher, 655 So.2d 1149 (Fla. 4th DCA 1995). "A ruling
constitutes `a departure from the essential requirements of the
law' when it amounts to `a violation of a clearly established
principle of law resulting in a miscarriage of justice.'"
Byrd v. Southern Prestressed Concrete, Inc.,
928 So.2d 455, 457 (Fla. 1st DCA 2006) (quoting Combs v. State,
436 So.2d 93, 96 (Fla. 1983)).

Disqualification of an attorney is an extraordinary remedy and
must be sought with "`reasonable promptness . . . to prevent . . .
using the motion as a tool to deprive [the movant's] opponent
of counsel of his choice after completing substantial
preparation of the case.'" Lee v. Gadasa Corp.,
714 So.2d 610, 612 (Fla. 1st DCA 1998) (quoting Transmark,
U.S.A. v. State, Dep't of Ins., 631 So.2d 1112 (Fla. 1st
DCA 1994)). Such motions are "generally viewed with skepticism
because . . . [they] are often interposed for tactical
purposes." Alexander v. Tandem Staffing Solutions,
Inc., 881 So.2d 607, 608-09 (Fla. 4th DCA 2004) (citing
Evans v. Artek Sys. Corp., 715 F.2d 788 (2d Cir. 1983);
Manning v. Waring, Cox, James, Sklar & Allen,
849 F.2d 222 (6th Cir. 1988)); see also Key Largo Restaurant,
Inc. v. T.H. Old Town Assocs., Ltd., 759 So.2d 690, 695
(Fla. 5th DCA 2000) (Griffin, J., dissenting) (noting that
five-year delay in filing successful motion to disqualify
constituted "litigation tactic" and caused other party
prejudice). We believe Petitioners' motion, and certainly this
petition for writ of certiorari, were filed as just such a
litigation tactic.

Even had the trial court not properly found that Petitioners
waived a claim of conflict, Petitioners' assertion that they
were current clients was baseless and not supported by the
material facts or applicable law. Additionally, based on the
undisputed facts, Petitioners had no legal cause to seek
disqualification as former clients. See rule 4-1.9,
Fla. R. Prof. Conduct; Morse v. Clark, 890 So.2d 496
(Fla. 5th DCA 2004).

Petitioners argued below that they are current clients of Broad
and Cassel and relied primarily on two cover letters sent from a
paralegal in Broad and Cassel's Orlando office in 2004 and a
paralegal's bill for minor changes to their estate file in 2007.
None of these acts indicated a continuing legal representation,
but rather they were ministerial tasks performed to update the
completed estate planning documents. This ministerial work does
not meet the definition of the "continuous representation rule."
See Hampton v. Payne, 600 So.2d 1144, 1146 (Fla.
3d DCA 1992). There was no "clear indicia of an ongoing,
continuous, developing and dependent relationship between the
client and the attorney." Mutter v. Sturman,
79 A.D.2d 482, 437 N.Y.S.2d 205, 208 (1981). It is undisputed that
Petitioners did not speak to an attorney in 2004 concerning
their minor beneficiary changes, nor did any attorney work on
their estate plan between June 2001, when Mr. Palma's work was
completed, and 2007, when some minor tasks were performed by a
paralegal.

Broad and Cassel's representation of Petitioners came to an end
in June 2001, making them former clients of the firm. While
Petitioners subjectively asserted below that the firm still
represented them, the objective record evidence belies their
Page 1184
claim. See Gen. Elec. Real Estate Corp. v. S.A. Weisberg,
Inc., 605 So.2d 955, 956 (Fla. 4th DCA 1992) (subjective
impression of conflict requires evidentiary hearing in light of
contradictory evidence that such evidence was objectively
reasonable). As we noted, Petitioners never sought an
evidentiary hearing to establish a factual basis to support
their purely subjective claim that they were current clients of
Broad and Cassel. Estate planning was the single task that Mr.
Palma undertook for Petitioners. He completed this task in June
2001, long before Petitioners moved to disqualify Broad and
Cassel in 2007. Thus, Broad and Cassel was not prohibited from
representing Respondent.

Even assuming, arguendo, that Petitioners demonstrated
material facts below to support the assertion that they were
current clients, we find no basis for their claim here that the
trial court departed from the essential requirements of law in
determining that Petitioners waived any conflict by waiting
until 2007 to file their motion to disqualify. See Lee,
714 So.2d at 612. The facts presented demonstrate that
Petitioners had actual knowledge of the conflict in 2001 but did
not act on this knowledge until much later, when disqualifying
the firm would severely prejudice Respondent.

Further, no decision of this court supports Petitioners'
assertion that the trial court's ruling of waiver departed from
the essential requirements of law. While the Fifth District's
decision in Key Largo Restaurant may indeed provide a
legal justification for this disqualification effort, that
decision is not the law of the First District. Rather, this
court's only applicable decisions are Lee and
Transmark, neither of which supports Petitioners' motion.

Moreover, Petitioners asserted no legitimate argument below
that their delay in filing the motion to disqualify did not
prejudice Respondent. Since 2001, Attorneys Turner and
Fitzpatrick have been representing Respondent in not only the
trade secrets case and counterclaim, but also in the other
civil, criminal, and ethics litigation. They are intimately
familiar with the facts and procedural background of the cases.
No other attorneys or firm can plausibly represent Respondent at
this juncture and gain the detailed knowledge that Turner and
Fitzpatrick have accumulated over the years.

III. Attorney's Fees Under Section 57.105, Florida
Statutes

A court "shall" award attorney's fees under section 57.105(1),
Florida Statutes, where it is clear that the offending party has
asserted a claim that is unsupported by material facts or by the
law applicable to the material facts. See Boca Burger, Inc.
v. Forum, 912 So.2d 561, 570 (Fla. 2005); Albritton v.
Ferrera, 913 So.2d 5, 9 (Fla. 1st DCA 2005). Here,
Petitioners' uncorroborated, subjective, and highly dubious
claim that they "didn't know" Broad and Cassel had represented
Respondent since 2001 cannot constitute a material fact, given
Petitioners' failure to request an evidentiary hearing. The
trial court likewise found this claim unworthy of credence. We
find, therefore, that Petitioners' claim that the trial court
departed from the essential requirements of law in its finding
should not have been asserted here. Consequently, we impose
attorney's fees against both Petitioners and their attorney
pursuant to section 57.105(1), Florida Statutes.

We also find the relevant factual assertions made by
Petitioners' attorney to be not credible. Specifically, at oral
argument he claimed no knowledge of the nature of Broad and
Cassel's work for Petitioners after 2001, or whether a paralegal
or an attorney had performed that work. Counsel also insisted
that neither he nor
Page 1185
Petitioners knew or could have known that Broad and Cassel was
representing Respondent in both this and the other litigation.
In addition, counsel persistently claimed that the other
litigation is unrelated to the present case, that Petitioners
have been uninvolved in that litigation, and, as a result, they
did not know that Broad and Cassel represented Respondent before
2007. These parties have been involved in ongoing litigation
since November 2001. Further, Petitioners do not dispute that
they were fact witnesses in the related cases, nor that their
allegations are the foundation for other litigation where Broad
and Cassel's same attorneys represent Respondent; therefore,
their attorney's statements at oral argument claiming a lack of
knowledge are unsupported by the record. See Dep't of
Transp. v. Fla. Comm'n on Human Relations, et al.,
867 So.2d 489 (Fla. 1st DCA 2004).

Additionally, counsel's assertion that he should not be held
liable for one-half of the attorney's fees under
section 57.105(1), Florida Statutes, is unavailing. It is not enough for
counsel to assert that he "vetted" his clients' representation
of the facts. To avoid liability, counsel must make an
objectively reasonable investigation of the purported facts
supporting a claim. Counsel could not credibly rely on Dr.
Yang's affidavit asserting that Petitioners did not discover the
conflict until 2007, nor can counsel claim ignorance of the
representation by virtue of the fact that Petitioners were
represented by other attorneys before retaining him. The record
reflects that Petitioners told their original attorney that
Broad and Cassel represented them in their estate planning;
therefore, knowledge of the conflict was imputed through
Petitioners' original attorney. See Prudential Ins. Co. of
America v. Anodyne, Inc., 365 F.Supp.2d 1232, 1240 n. 11
(S.D.Fla. 2005) (noting that, although the court would not reach
the waiver issue, "how is knowledge imputed to a large
corporation if not through its own counsel?"). As this court
observed in Transmark, extensive proceedings make it
inescapable that a client would know of a potential conflict
with an opposing party's attorney. Here, while Petitioners were
not parties to all of the cases against Respondent in the years
of litigation, they were and are central players in this
protracted conflict.

Conclusion

We conclude that this petition for certiorari was not supported
by any material facts or by an application of the law to those
facts; therefore, pursuant to section 57.105(1), Florida
Statutes (2007), we order Petitioners and their attorney, John
C. Hanson, II, to pay Respondent's appellate attorney's fees.
Petitioners and their attorney shall share equal responsibility
for these fees.

REMANDED for a factual determination of the amount of
attorney's fees incurred by Respondent in this certiorari
proceeding.

ALLEN and WEBSTER, JJ., concur.