8 Fla. L. Weekly Supp. 731a
Insurance — Personal injury protection — Attorneys — Disqualification — Attorney who was involved in discussions of specific facts and issues of insured’s PIP case during prior affiliation as counsel for insurer was disqualified from representing insured in her PIP case — Although attorney testified that he does not remember discussing the particulars of insured’s case and was not involved in case before terminating his employment with insurer, actual violation of ethics rules is not prerequisite to granting motion to disqualify to avoid the appearance of impropriety
MEDICAL EVALUATION CENTERS, INC., Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 00-13549 CC/J, Division H. July 26, 2001. Frank A. Gomez, Judge.
ORDER GRANTING DEFENDANT’S MOTION TODISQUALIFY HANS KENNON AND THE LAW FIRMOF MORGAN, COLLING & GILBERT, P.A.
THIS MATTER having come before the Court on Defendant’s Motion to Disqualify Hans Kennon and the Law Firm of Morgan, Colling & Gilbert, P.A. on the 27th day of April, 2001, and the Court having considered testimony, arguments of counsel, supporting memoranda, and being otherwise fully advised in the premises, hereby finds and rules as follows:
ORDERED AND ADJUDGED:
Based on the fact that Mr. Kennon had a connection with this particular case during his former employment as outside counsel for Defendant, he should be disqualified pursuant to Florida Bar Rule 4-9.1. Defendant’s Motion to Disqualify is hereby Granted as to this matter only.FINDINGS OF FACT
1. Defendant seeks to disqualify Hans Kennon and the Law Firm of Morgan, Colling & Gilbert, P.A. based on Florida Bar Rules 4-1.9(a) and 4-1.0(b). Specifically, Mr. Kennon, who presently represents the Plaintiff in this Personal Injury Protection claim against the Defendant insurance company, had been previously employed by an insurance defense firm at which time he participated in the representation of the Defendant insurance company on many occasions.
2. During the course of his prior employment, Mr. Kennon attended meetings with Defense counsel along with several other attorneys regarding matters relating to MRI brokering issues.
3. During those meetings, many specific cases, including this particular matter, were discussed by Mr. Kennon and Defendant Insurance Company.
LAW
Florida Bar Rule 4-1.9(a) requires disqualification when a lawyer who has formerly represented a client undertakes to “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….” State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630 (Fla.1991).
It is important to note, however, that disqualifying an attorney is a matter of no small consequence. Thus, before a client’s former attorney will be disqualified from representing a party whose interests are adverse to the former client’s, the former client must show that the matters embraced in the pending suits are the same or are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979).
Defendant insurance company has made such a showing in this case. Although this Court is not persuaded that Mr. Kennon should be disqualified from ALL cases against the insurer, it does find that his disqualification in this case is warranted.
Generally, all PIP cases are unique in that the cases involve different insureds, different injuries, different accidents, and different doctors. See Medical Evaluation Centers, Inc. v. State Farm Mutual Auto. Ins. Co. Case No. 2000-14540 (Thirteenth Judicial Circuit, 2001). Therefore, Defendant cannot show that all of its PIP cases are “substantially similar.” However, in this case, Defendant has met its burden by showing that Mr. Kennon participated in meetings pursuant to his prior affiliation with State Farm, and, in those meetings, was involved in discussions regarding the specific facts and issues of this case.
Mr. Kennon testified that he does not remember discussing the particulars of this case and was not involved in this case before terminating his prior employment. While it is true that when considering a motion for disqualification, the “lawyer’s involvement in a matter can also be a question of degree.” Royal Caribbean Cruises, Ltd. v. Buenaagua, 685 So.2d 8 (Fla. 3d DCA 1996). An actual violation of the ethics rules is not a prerequisite for granting motion for disqualification to avoid the appearance of impropriety. Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Authority, 593 So.2d 1219 (Fla. lst DCA 1992). Further,
It is therefore
ORDERED AND ADJUDGED that Defendant’s Motion to Disqualify Hans Kennon and the Law Firm of Morgan, Colling & Gilbert, P.A. is hereby GRANTED.
* * *
