10 Fla. L. Weekly Supp. 40a
Insurance — Personal injury protection — Attorneys — Disqualification — Motion to disqualify attorney who previously represented insurer in PIP cases is denied where insurer failed to establish that matter in which attorney represented insurer was same or substantially related to matter in current cases, or that attorney obtained confidential information when representing insurer that will be used and place insurer at a disadvantage in current cases
HEALTHCARE WEST MEDICAL & REHABILITATION, etc., Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2001-12630-CODL. HEALTHCARE WEST MEDICAL & REHABILITATION, etc., Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2001-12629-CODL. COMPLETE WELLNESS MEDICAL CENTER, etc., Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2002-10713-CODL. COMPLETE WELLNESS MEDICAL CENTER, etc., Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2002-10714-CODL. BARNES FAMILY CHIROPRACTIC, etc., Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. Case No. 2001-12627-CODL. HOGLUND CHIROPRACTIC CLINIC, etc., Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. Case No. 2002-10370-CODL. October 31, 2002. J.R. Smith, Judge. Counsel: Kimberly Simoes, Susan W. Tolbert, P.L., Daytona Beach. Virgil W. Wright, III, Ocala. Greg A. Victor, Miami.
ORDER
THIS CAUSE coming on before the Court on Defendant, ALLSTATE INSURANCE COMPANY’s Motion To Disqualify Attorney Kimberly Simoes and The Law Firm of Wyatt and Tolbert, P.A., and after review of each of the above files, hearing and reviewing all the evidence and argument of counsel, the Court finds as follows:
1. A previous attorney-client relationship existed between the Plaintiff’s attorney, Kimberly Simoes (Simoes), and Allstate Insurance Company (Allstate).
2. Allstate argues that Simoes, while acting as staff attorney at the law firm of Leonard C. Bishop, P.A., was assigned to represent Allstate in cases relating to personal injury protection and because of the attorney-client relationship established, Ms. Simoes was privy to confidential information preventing her from representing the Plaintiffs in the above cases. The Defendant alleges that Rule 4-1.9(a)&(b) of the Code of Professional Conduct of The Florida Bar mandates Ms. Simoes’ disqualification.
3. The dispute regarding the alleged violation of Rule 4-1.9(a) centers around whether or not the “matter” in which Ms. Simoes is representing the above Plaintiffs is the same or substantially related to the “matter” in which she formerly represented the Defendant.
4. A close reading of Rule 4-1.9(a) and especially the Comment helps resolve the above issue:
“…On the other hand a lawyer who recurrently handles a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.” (emphasis added)
5. It is this Court’s understanding that the intent of the Rule was to prohibit lawyers who had been directly involved in a specific transaction or case for a client from subsequently representing another client with interest arising from the same transaction or case adverse to the former client.
6. The Court finds that the evidence produced by the Defendant failed to establish that the “matter” in which Ms. Simoes represented Allstate while at the Law Firm of Leonard C. Bishop was the same or substantially related to the “matter” in the above styled cases.
7. The dispute regarding the alleged violation of Rule 4-1.9(b) centers around the question of whether or not Ms. Simoes obtained confidential information from the Defendant while representing the Defendant at the law firm of Leonard C. Bishop, P.A. and because of acquisition of this confidential information, the Defendant is at a disadvantage in the above styled cases.
8. The Court finds that, after considering the totality of the circumstances, the Defendant failed to produce sufficient evidence to show that Ms. Simoes obtained confidential information when she represented the Defendants while at the Law Firm of Leonard C. Bishop that will be used in the cases cited above and that will place the Defendants at a disadvantage. It is apparent that Ms. Simoes gained nothing more than common knowledge.
9. Because of the Court’s above findings, the Law Firm of Wyatt and Tolbert, P.A. is not in violation of Rule 4-1.10.
It is, therefore:
ORDERED AND ADJUDGED that, based upon the Court’s above findings, the Defendant, ALLSTATE INSURANCE COMPANY’s Motion To Disqualify is hereby DENIED.
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