10 Fla. L. Weekly Supp. 206a
Insurance — Personal injury protection — Counsel — Disqualification — Conflict of interest — Prior representation of adverse party — Although PIP case at issue is same type of case as those in which insured’s attorney represented insurer as its in-house counsel, where there has been no showing that facts and circumstances are the same or substantially related, motion to disqualify is denied
MED-MANAGE GROUP, INC., as assignee of Evelyn Charles, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-9733 SP 23 (4). January 2, 2003. Mary Jo Francis, Judge. Counsel: Alejandro M. Garcia, Toral & Associates, Fort Lauderdale, for Plaintiff. Craig Trocino.
ORDER ON DEFENDANT’S MOTION TO DISQUALIFYPLAINTIFF’S COUNSEL AND HIS EMPLOYER LAW FIRMAND MOTION FOR SANCTIONS
This matter came before this Court on November 22, 2002 at 1:30 p.m. on Defendant’s Motion to Disqualify Plaintiff’s Counsel and his Employer Law Firm and Motion for Sanctions, and the Court having reviewed all of the memoranda filed by the parties and all other items of record, and having heard argument of counsel and being otherwise fully advised in the premises, this Court hereby finds as follows:
UNDISPUTED FACTS
Plaintiff’s counsel, Alejandro M. Garcia was employed as an attorney with Dracos & Associates, in-house counsel for United Automobile Insurance Company, from approximately April 1999 through November 2001. Mr. Garcia represented United Automobile primarily in the area of PIP defense. On or about November 2001 Mr. Garcia terminated his employment with Dracos & Associates and began his employment with Barbanell & Toral, LLP n/k/a Toral & Associates and is presently so employed. Subsequent to Mr. Garcia’s employment with Toral & Associates he filed the present suit against United Automobile Insurance Company who is presently seeking his disqualification, the imputed disqualification of his firm and sanctions.
ANALYSIS
The Florida Bar prohibits a lawyer who has formerly represented a client from representing another person “in the same or a substantially related matter” where that person’s interests are materially adverse to the former client’s. F.S.A. Bar Rules 4-1.9(a). There is no question that the Plaintiff’s interests are materially adverse to those of United Automobile Insurance Company nor that United Automobile has not consented to this action. Therefore, the only question before this Court is whether this matter is the same or substantially related to any matters in which Plaintiff’s counsel previously represented United Automobile. Whether two legal matters are substantially related depends upon the specific facts of each particular situation or transaction. Florida Bar v. Dunagan, 731 So. 2d 1237 (Fla. Supreme Court 1999). The Court found no showing by United Automobile that the matter at issue is the same or substantially related.
Disqualification of a party’s lawyer in a civil case is an immensely unusual remedy, one that must be employed only in limited circumstances. Allstate Insurance Company v. Bowne, 817 So. 2d994 (Fla. 4th DCA 2002); Arcara v. Philip M/ Warren, P.A., 574 So. 2d 325, 326 (Fla. 4th DCA 1991); General Accident Insurance Co. v. Borg-Warner Acceptance Corp., 483 So. 2d 505 (Fla. 4th DCA 1986); see also Freeman v. Chicago Musical Instrument Co., 689 F. 2d 715, 721-22 (7th Cir. 1982) (we also note that disqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose except when absolutely necessary”).
In spite of this policy, United Automobile argues that all PIP cases are in sum and substance the same, and therefore based upon attorney Garcia’s prior representation of United Automobile, attorney Garcia must never be allowed to represent PIP plaintiffs against United Automobile. This is contrary to the comment of Rule 4-1.9 which states that: “a lawyer who recurrently handled 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”. The court in Royal Caribbean Cruises, LTD v. Buana Agua, 21 Fla. L. Weekly D2311 (Fla. 3rd DCA 1996) re-iterated the position and found that “as the four learned trial judges discerned in these cases, RCCL’s affidavits merely relates what every lawyer already knows: Jones Act cases are all similar. This is a basic principle of our jurisprudential system. All patent cases are similar; all bankruptcy cases are similar; indeed, all eviction, negligence and immigration cases, and all cases of any singular type share elements in common. The affidavits were insufficient to require disqualification.” Though there is no dispute that the case at issue is the same type of case as those in which Mr. Garcia represented United Automobile, there has been no showing that the facts or circumstances are the same or substantially related.
CONCLUSION
For the foregoing reasons, it is ordered and adjudged that:
1. Defendant’s Motion to Disqualify Plaintiff’s Counsel and his Employer Law firm is hereby DENIED.
2. Defendant’s Motion for Sanctions is hereby DENIED.
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