10 Fla. L. Weekly Supp. 41b
Insurance — Personal injury protection — Attorneys — Disqualification — Conflict of interest — PIP cases involving reduction of medical bills pursuant to preferred provider agreements in which attorney previously represented insurer are not same matter as current cases in which attorney represents assignees where insureds, assignees, dates, and venue are different, and PPO agreements were not crux of prior cases as they are in current cases — Insurer failed to prove that attorney was privy to confidential information that creates a conflict requiring her disqualification where only opportunity for acquiring confidential information was brainstorming session at which no confidential defense strategy was discussed — Motion to disqualify denied
CHARLES TUCKER, D.C. a/a/o LILLIAN JULOW, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2001-34447-COCI. BARNES FAMILY CHIROPRACTIC a/a/o RENEE LORAE, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2001-34549-COCI. BARNES FAMILY CHIROPRACTIC a/a/o DIEDRE DOHERTY, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2001-34550-COCI. CHARLES T. TUCKER, D.C. a/a/o ROBERTA POWELL, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2001-34566-COCI. CHARLES T. TUCKER, D.C. a/a/o SHELBA DYES, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2001-34568-COCI. COMPLETE WELLNESS MEDICAL CENTER, a/a/o DAVIS JOHNSON, JR., Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2001-35297-COCI. October 21, 2002. Peter F. Marshall, Judge. Counsel: Kimberly P. Simoes, Susan W. Tolbert, P.L., Daytona Beach. Virgil W. Wright, III, Ocala. Greg A. Victor, Miami.
[Certiorari denied at 10 Fla. L. Weekly Supp. 756a.]
ORDER
This cause having come on to be heard pursuant to Defendant, Allstate (Insurance/Indemnity) Company’s Motion to Disqualify Attorney Kimberly Simoes and the law firm of Wyatt & Tolbert, P.A., and the Court having taken notice of each of the files listed above, having heard the testimony of the witnesses, having reviewed the exhibits introduced into evidence, having listened to the arguments of counsel and otherwise being fully advised of the premises; the Court makes the following finding upon which it enters this Order denying the Defendant’s Motion.
The Defendant has moved in each case to disqualify attorney Kimberly Simoes (Simoes) and the law firm of Wyatt & Tolbert, P.A. (W&T) from representing the Plaintiffs by alleging the violation of Rule 4-1.9 and Rule 4-1.10 of the Rules of Professional Conduct Regulating the Florida Bar. The grounds for disqualification are premised upon the prior attorney/client relationship arising from the representation of the Defendant by Simoes and her subsequent association with (W&T).
The facts are undisputed that from February 21, 2000, until January 15, 2001, Simoes was employed at the law firm of Leonard C. Bishop (Bishop) in Ft. Lauderdale, Florida, as staff counsel for the Defendant. During her employment there she was assigned personal injury protection (PIP), uninsured motorist (UM) and third party cases. After resigning her position at Bishop she went to work as an attorney at W&T. It was approximately nine months after leaving Bishop that Simoes filed the above referenced cases that are the subject of this Motion to Disqualify.
These cases all involve Plaintiffs that are health care providers who are filing as the assignee of persons covered under PIP policies issued by the Defendant. The common issue in each of these cases is what are the Plaintiff’s rights under Florida Statute 627.736(10) as it relates to the Defendant’s conduct in reducing medical bills based on a preferred provider agreement? Each of these Plaintiffs entered into a contract to provide health care services in exchange for discounted rates. For the purposes of this Motion there are two contracts at issue: Beech Street Corporation Network Provider Agreement (Beech Street) and Community Care Network, Inc. Professional Care Provider Agreement (CCN). Although Simoes has filed other PIP related cases against the Defendant, the parties have stipulated that it is only in cases involving Beech Street or CCN litigation that the Defendant seeks to have Simoes disqualified (Transcript of 6/11/02 at P76/L17).
It is not uncommon in PIP litigation for multiple issues to be involved. Although the Complaint may be premised upon an IME cut-off, coverage denial, peer review denial, etc. often there is also a PPO agreement present in the case. During her employment at Bishop, Simoes processed hundreds of PIP litigation cases. In many of these cases there were PPO agreements.
Rule 4-1.9 states:
“A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or substantially related matter in which that person’s interest are materially adverse to the interests of the former client….”
It is the narrow focus of this Court to determine if Simoes was privy to confidential information obtained through her attorney/client relationship with the Defendant in her handling of these PPO agreements and whether her disposition of Defendant’s cases was the “same or substantially related” to the cases before the Court so as to create a conflict of interest and grounds for disqualification.
In the summer of 2000 the Defendant experienced the beginning of a wave of litigation challenging the Defendant’s practice of taking a reduction on medical bills filed in PIP cases based on a PPO agreement with Beech Street or CCN (Transcript of 9/10/02 at P192/L18). At first the Defendant was not sure how to respond to this type of case. To make matters worse a class action suit was pending against the Defendant based on the same cause of action. In an effort to coordinate its response to the class action and to the individual cases pending throughout the state the Defendant came up with a team approach to evaluate this pending litigation. The team consisted of staff attorneys, outside defense counsel, home office attorneys, class action attorneys and claims people (Transcript of 9/10/02 at P109/L6). The team produced a manual to address the problems (Defendant’s exhibit 17). It held seminars and conducted monthly conference calls to stay abreast of new developments in the pending litigation (Transcript of 9/10/02 at P195/L22 and P196/L10 and 17). It was through these efforts that the Defendant contends confidential information was developed to defend against the Beech Street and CCN litigation. In its Motion to Disqualify the Defendant alleges that Simoes was privy to this confidential information and has utilized this knowledge in filing the cases that are pending before this Court.
The Defendant has introduced multiple exhibits that include copies of 18 litigation files, office correspondence (letters, facsimiles, memoranda), computer notes from litigation files and the manual described above. The Defendant seeks to show that each exhibit contains some component involving a Beech Street or CCN agreement and that Simoes was involved in each of these exhibits. The Defendant has also offered testimony to show that Simoes attended a team conference call on January 2, 2001, (Transcript of 9/10/02 at P206/L15). It is through this involvement that the Defendant seeks to show that Simoes acquired confidential information.
Simoes admits that she dealt with Beech Street and CCN agreements during her employment with Bishop. She denies that she was privy to any confidential information developed by the Defendant in preparation of its defenses to Beech Street and CCN litigation (Transcript of 6/11/02 at P52/L24). She did not attend the seminar, nor was she included on the team that the Defendant assembled to defend this litigation (Transcript of 6/11/02 at P47/L6 and Transcript of 9/10/02 at P225/L12). Simoes does admit that just prior to her resignation from Bishop she attended a conference call meeting on January 2, 2001. She did this at the request of Holly Carroll, an attorney at Bishop who was assigned to the team, but who was unable to attend the conference call (Transcript of 9/10/02 at P108/L2). Simoes testified that she had no recall of what was discussed during the conference call (Transcript of 6/11/02 at P49/L21). She tendered her resignation from Bishop effective January 15, 2001.
A comparison of the cases pending before this Court and the exhibits introduced by the Defendant demonstrate several noteworthy differences.
1) The insured in each case is different
2) The provider in each case is different
3) The dates are different
4) The venue is different
The only common thread running through the Defendant’s exhibits and the cases pending before this Court is the presence of a Beech Street or a CCN agreement. In the Defendant’s exhibits these agreements are not the crux of the litigation, but are peripheral items of discovery. In many of the exhibits Simoes’ only contact with the agreement was to request a copy from Beech Street or CCN and then forward the copy upon receipt. The entire cause of action was not premised upon a Beech Street or CCN agreement as in the pending cases. The Court finds that the evidence produced by the Defendant is not the “same matter” as represented in the cases pending before the Court, State Farm Mutual Automobile Insurance Company v. K.A.W., 575 So.2d 630 (Fla. 1991).
A more difficult issue for the Court’s determination is whether or not Simoes acquired confidential information through her representation of the Defendant that creates a conflict requiring disqualification from the pending cases. Apart from the exhibits introduced by the Defendant there was also testimony offered to show that Simoes was privy to confidential information. Although the Defendant concedes that Simoes was not part of the team formed to defend the Beech Street and CCN litigation, they have sought to show her exposure to confidential information developed by the team. After reviewing the testimony of the Defendant’s witnesses the Court finds that the conference call meeting of January 2, 2001, is the only opportunity where she could have acquired confidential information.
Although the Defendant has done its best to create the impression that at this meeting all of its secrets were laid bare in the presence of Simoes, it is clear that no definitive strategy was developed or discussed regarding how to successfully defend the Beech Street and CCN litigation (Transcript of 9/10/02 at P121/L13). There was a lengthy discussion about recent rulings against other insurance carriers and how they defended against this litigation (Transcript of 9/10/02 at P122/L9, see also Defendant’s exhibit 18). The primary focus of the meeting seemed to be how not to jeopardize the class action lawsuit through the defense of the individual cases (Transcript of 9/10/02 at P197/L11). (It should be noted that Simoes was neither on the Beech Street/CCN team, nor was she involved in the class action litigation.) Viewing this meeting in the light most favorable to the Defendant it appears to the Court that it was nothing more than a “brain storming” session where no confidential strategy for defending individual Beech Street or CCN cases was discussed because there is no showing that a definitive defense strategy had been developed.
After considering the totality of the circumstances it is impossible for this Court to make the leap of logic advocated by the Defendant that attributes the knowledge of confidential information to Simoes. The comment section of Rule 4-1.9 states:
“The scope of a matter for purposes of Rule 4-1.9(a) may depend on the facts of a particular situation or transaction. The lawyers involvement in a matter can also be a question of degree.”
In Nissan Motor Corporation In USA v. Orozoco, 595 So.2d 240 (Fla. App. 4 Dist. 1992) the Court dealt with a similar situation involving an effort to disqualify the Petitioner’s law firm due to its employment of an attorney that had previously worked for the Respondent’s law firm. The Trial Court conducted a hearing and found that the attorney in question:
“…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…”
The Trial Court went on to hold:
“Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by Rules 4-1.6 and 4-1.9. Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interest of the two (2) clients conflict.”
The Defendant has attempted to show that Simoes used confidential information to prepare her pleadings and discovery demands. It has been shown that these pleadings were nothing more than generally known information that she obtained from another plaintiff’s attorney who had filed Beech Street and CCN cases against an insurance carrier other than the Defendant (Transcript of 6/11/02 at P29/L18).
This Court finds that Simoes did not acquire confidential information during her employment with Bishop related to the Defendant’s strategies and policies for dealing with Beech Street and CCN litigation. Consequently, there is no basis to disqualify Simoes. Since she had no confidential information to share with W&T there is no basis to disqualify that firm. It is therefore,
ORDERED and ADJUDGED that Defendant Allstate (Insurance/Indemnity) Company’s Motion to Disqualify Attorney Kimberly Simoes and the Law Firm of Wyatt & Tolbert, P.A. is hereby DENIED.
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