10 Fla. L. Weekly Supp. 391a
Insurance — Personal injury protection — Attorneys — Disqualification — Conflict of interest — Challenge to order denying motion to disqualify law firm representing medical providers because firm employs attorney formerly employed by insurer as claims adjuster — Appearance of impropriety alone does not lead to disqualification, and record refutes claim that appearance of impropriety was clear — Where insurer failed to prove that former claims adjuster was exposed to confidential information or that cases at bar are “substantially related” to cases worked on as claims adjuster, insurer was not entitled to disqualification of law firm
PROGRESSIVE EXPRESS INS. CO., Petitioner, vs. STERLING IMAGING INC., Respondent. PROGRESSIVE EXPRESS INS. CO., Petitioner, vs. DREXEL CHIRO & REHAB INC., Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Consolidated Case Nos. 02 550 AP, 02-551 AP, 02-552 AP, 02-553 AP, 02-554 AP. L.C. Case Nos. 01-28669 SP 23; 01-28675 SP 23; 01-29109 SP 23; 02-09141 SP 23; 02-09142 SP 23. April 29, 2003. A petition for writ of certiorari from a decision of the County Court for Miami-Dade County, Raphael Steinhardt, Linda Singer Stein, Myriam Lehr, Mary J. Francis, Judges. Counsel: Douglas H. Stein, Anania, Bandklayder, Blackwell, Baumgarten, Torricella, & Stein P.A., Miami, for Petitioner. Harley N. Kane, Kane & Kane P.A. and Irwin Gilbert, Harris & Gilbert LLP., West Palm Beach and Boca Raton, for Respondents.
(Before PEDRO P. ECHARTE JR., JACQUELINE H. SCOLA, and MARY R. BARZEE, JJ.)
(BARZEE, J.) This cause came on to be heard on Petitioner, Progressive Express Insurance Co.,’s Petition for a Writ of Certiorari from an order denying the disqualification of Respondents, Sterling Imaging Inc. and Drexel Chiro & Rehab Inc.’s counsel, Kane and Kane, P.A. An order disqualifying or refusing to disqualify counsel from representing a party is subject to review by certiorari. See Garner v. Somberg, 672 So. 2d 852, 854 (Fla. 3d DCA 1996). This Court having considered the argument of counsel and being advised in the premises, finds as follows:
I.FACTUAL BACKGROUND
In 1999, the insureds, Magdalia Alamo, Oscar Martinez, Jorge Alamo and Chae Chan were involved in automobile accidents in which they sustained personal injuries. In 2002, Respondents, their health care providers, filed complaints below alleging Petitioner failed to pay all of their PIP claims for health care services within thirty (30) days under §627.736(4)(b). Respondents are the assignees of the insureds.
Respondents were represented below by the law firms of Greenspan and Kane P.A. and Kane and Kane P.A. (Kane and Kane) which handle PIP insurance litigation. Their counsel, Kane and Kane had hired an associate attorney, Glenn Siegel, who had previously worked as a claims litigation specialist/adjuster under a confidentiality agreement with the Petitioner from March of 1999 to September of 2000. Mr. Siegel had sought the position with Kane and Kane without first informing the Petitioner. After Mr. Siegel began working for Kane and Kane, Petitioner noticed the number of cases filed by Kane and Kane increased substantially. There are currently over one hundred pending PIP insurance cases of Kane and Kane against the Petitioner in Miami-Dade County.
Petitioner answered the complaint and filed motions to disqualify Kane and Kane because of Mr. Siegel. The motions to disqualify were the same in all of the consolidated cases below. On October 30, 2002, a hearing was held below by a panel of judges on Petitioner’s motions to disqualify Respondents’ counsel. The Court below denied the Motions to Disqualify Respondent’s Counsel and this appeal follows.
II.STANDARD OF REVIEW
The standard of review for this Court on a Petition for Writ of Certiorari is whether the order under review fails to conform to the essential requirements of law and may cause material injuries in subsequent proceedings for which a remedy by appeal will be inadequate. See Kenn Air Corp. v. Gainesville-Alachua Cty. Reg’l Airport Auth., 593 So. 2d 1219, 1221 (Fla. 1st DCA 1992).
III. CONCLUSIONS OF LAW
Appearance of Impropriety
Petitioner contends that the lower court erred in failing to disqualify Kane and Kane arguing that an appearance of impropriety was clear. An appearance of impropriety alone does not, however, lead to the drastic remedy of disqualification. See Allstate Ins. Co. v. Bowne, 817 So. 2d 994, 998 (Fla. 4th DCA 2002). In any case, the record below refutes the Petitioner’s claim.
Non-Attorney Imputed Disqualication/Professional Rules of Conduct
Next, Petitioner claims the Rules of Professional Conduct (Rules) require Respondents’ counsel to be disqualified.
It is well established under the Rules that a disqualification of a party’s counsel is an extraordinary remedy and should be resorted to sparingly. See Carnival Corp. v. Romero, 710 So. 2d 690, 691 (Fla. 5th DCA 1998); In re Estate of Gory, 570 So. 2d 1381, 1382 (Fla. 4th DCA 1990); and Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051, 1053 (Fla. 5th DCA 1979). The general rule is that an attorney cannot represent a prospective client if the attorney would gain an informational advantage resulting from a conflict of interest See State Farm Mut. Auto Ins. Co. v. K.A.W., 575 So. 2d 630, 632 (Fla. 1991). In this case, however, the Petitioner admits that Mr. Siegel, a Florida Bar member, was not previously employed as an attorney for the Petitioner. He was employed and paid as a claims litigation adjuster.
As Mr. Siegel was employed as a non-lawyer, a different rule applies. A non-lawyer employee who “switches sides” in relation to either ongoing or future litigation can disqualify a law firm: 1) where the non-lawyer employee is employed by an attorney or law firm having an attorney-client relationship with the former client See Koulisis v. Rivers, 730 So. 2d 289, 292 (Fla. 4th DCA 1999); or 2) where the non-lawyer employee possesses actual confidential information which gives the adverse party an unfair advantage. See Tuazon v. Royal Caribbean Cruise Ltd., 641 So. 2d 417, 418 (Fla. 3d DCA 1994) and Royal Caribbean Cruise Ltd. v. Buenaagua, 685 So. 2d 8, 9 (Fla. 3d DCA 1996), rev. denied, 697 So. 2d 512 (Fla. 1997). In this case, neither applies.
Rule 4-1.10(b), states in pertinent part:
(b) Former Clients of Newly Associated Lawyer:
[w]hen a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or 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.
In this case, the Petitioner failed to prove either that Mr. Siegel was exposed to confidential information or that the cases at bar are “substantially related” to the cases he previously worked on as a claims adjuster. Royal Caribbean Cruises Ltd. v. Buenaagua, 685 So. 2d 8, 10 (Fla. 3d DCA 1996). Under Rule 4-1.10, a prior matter and a current matter are not considered substantially related merely because they are the same type of case or transaction. See Royal Caribbean Cruises Ltd. v. Buenaagua, 685 So. 2d 8, 10 (Fla. 3d DCA 1996), rev. denied, 697 So. 2d 512 (Fla. 1997).
IV.CONCLUSION
We find that the Petitioner did not meet its burden of proof and was not entitled to the disqualification of Kane and Kane. The record below demonstrates that Mr. Siegel did not have access to confidential information while employed as Progressive. Any knowledge he did gain as a claims adjuster in relation to the Petitioner’s custom or practice in handling certain classes of PIP cases was general knowledge that was either public information or could have been obtained through discovery.
Finally, Petitioner claims the lower court erred in finding it waived its right to disqualify Kane and Kane. Although it is not clear from the record that the court below actually found waiver, we need not address this issue. Whether or not there was waiver, Petitioner did not meet its burden of proof to be entitled to the disqualification of Kane and Kane.
We therefore find that the lower court complied with the requirements of the law in finding that Kane and Kane should not be disqualified.
Wherefore, it is ORDERED and ADJUDGED that Petitioner’s Petition for Writ of Certiorari is hereby DENIED. Respondents’ motion for appellate attorney’s fees is hereby Denied. (ECHARTE and SCOLA, JJ. concur).
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