End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
We regret any inconvenience.
Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Florida Legal Ethics
1.10:100 Comparative Analysis of Florida Rule
The Florida Rules do not reflect the 1989 amendments to MR 1.9 and 1.10. Thus, FL Rule 4-1.10(b) retains the substance of the language that was transferred to MR 1.9(c) in 1989, as well as the related comments. The Florida Rule comment does not contain paragraph 7 of the Comment to MR 1.9, also added by the ABA House of Delegates in 1989.
DR 5-105(D) provides that if a lawyer is required to decline or withdraw from employment under a DR, no partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm may accept or continue such employment, a prohibition substantially similar to that of FL Rule 4-1.10(a). DR 5-105(D) contains no provision for waiver of the conflict similar to that of FL Rule 4-1.10(d).
1.10:200 Imputed Disqualification Among Current Affiliated Lawyers
The irrefutable presumption that confidences were disclosed that applies under FL Rule 4-1.9 does not apply to FL Rule 4-1.10. The court must make a factual determination regarding whether a lawyer's new firm has acquired confidential information under the rule relating to imputed disqualification. Nissan Motor Corp. v. Orozco, 595 So. 2d 240 (Fla. 4th DCA 1992). The fact that there is an attorney transfer, the matters are the same or substantially related, and the matter is adverse does not create an irrebuttable presumption that the new firm acquired confidential information. Such proof only permits the court to impute knowledge to the new firm, leading to the further inquiry whether the imputed information is material to the matter at hand. In re Outdoor Prods. Inc., 183 B.R. 645 (Bankr. M.D. Fla. 1995).
The moving firm must establish a prima facie showing that confidences were revealed, then the burden of proof shifts to the other firm to prove that confidences were not revealed. Koulisis v. Rivers, 730 So. 2d 289 (Fla. 4th DCA 1999); Gaton v. Health Coalition, Inc., 745 So. 2d 510 (Fla. 3d DCA 1999). A lawyer's assertion that he "has no present recollection" is insufficient to meet that burden of proof. Id.
A single consultation can establish an attorney-client relationship sufficient to require disqualification of an entire firm under FL Rule 4-1.10. Florida Bar v. Birdsong, 661 So. 2d 1199 (Fla. 1995). A new partner of a vicariously disqualified partner to whom confidential knowledge was imputed is not necessarily disqualified, if the new partner can demonstrate that the disqualified partner's knowledge was imputed, not actual. American Can Co. v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 1971).
While not generally applicable to government agencies, FL Rule 4-1.10 has been held to disqualify an entire state attorney's office where former public defender for accused murderer moved to state attorney's office and consulted with colleague regarding his former client's death penalty hearing. Castro v. State, 597 So. 2d 259 (Fla. 1992). See also Popejoy v. State, 597 So. 2d 335 (Fla. 3d DCA 1992). Once a single attorney in a firm is disqualified under other provisions of the Rules, FL Rule 4-1.10 operates to disqualify all lawyers in that firm. Zarco Supply Co. v. Bonnell, 658 So. 2d 151 (Fla. 1st DCA 1995); Birdsall v. Crowngap, Ltd., 575 So. 2d 231 (Fla. 4th DCA 1991); Harrison v. Fisons Corp., 819 F. Supp. 1039 (M.D. Fla. 1993).
1.10:300 Removing Imputation by Screening
FL Rule 4-1.10 does not provide for any "ethical wall" exception. An attorney’s new firm may not escape disqualification merely by shielding the new attorney from any information related to the case. In several cases, law firms have attempted to escape disqualification by imposing ethical walls around new attorneys who represented adverse clients at their former firms, but in each instance the courts have disqualified the law firms. Birdsall v. Crowngap, Ltd., 575 So. 2d 231 (Fla. 4th DCA 1991)(shielding new associate from case not cause to forbear from disqualification; FL Rule 4-1.10 contains no ethical wall provision); Edward J. DeBartolo Corp. v. Petrin, 516 So. 2d 6 (Fla. 5th DCA 1987)(ethical wall not a defense when a private attorney joins another private firm); Brotherhood Mut. Ins. Co. v. National Presto Indus., 846 F. Supp. 57 (M.D. Fla. 1994)(working on plaintiff’s case for only a few hours at former firm enough to disqualify attorney and new firm from representing defendant); In re Outdoor Prods. Corp., 183 B.R. 645 (Bankr. M.D. Fla. 1995)(once it is demonstrated that attorney participated in the matter in a meaningful way at former firm, there is irrebuttable presumption that confidences were shared and those confidences are imputed to new firm; disqualification despite Chinese Wall, because no ethical wall provisions apply to FL Rule 4-1.10(b)).
At least one court has upheld the constitutionality of FL Rule 4-1.10(b) against an equal protection and due process argument that, unlike FL Rule 4-1.11(a), it does not contain a ethical wall or screening procedure. Birdsall v. Crowngap, Ltd., 575 So. 2d 231, 232 (Fla. 4th DCA 1991). The court found a rational basis in the distinction between the two rules, in that there is a compelling need to attract qualified lawyers to government service, and the screening procedures are necessary to prevent the disqualification rule form imposing too severe a deterrent against entering public service.
Migratory Nonlawyer Personnel:
The law in Florida is conflicting. The Second and Fifth DCAs hold that disqualification is not required absent a showing that the hiring law firm has obtained an unfair advantage as a result of obtaining confidential information. The Fourth DCA has expressed a much stricter rule requiring automatic disqualification if the transferring personnel had actual knowledge of confidential information in the previous employment. The Third DCA recently adopted the Fourth DCA's strict rule. The First DCA has not decided this issue. And The Florida Bar has issued an opinion based on the old Code of Professional Responsibility stating that screening will work.
In Stewart v. Bee-Dee Neon & Signs, Inc., 751 So. 2d 196 (Fla. 1st DCA 2000), the First DCA held that the burden of proving disqualification is at all times on the movant, who must initially present evidence that the nonlawyer was exposed to confidential information (defined as any information relating to representation of a client) that is material to the matter being litigated. In Stewart, a paralegal worked on a case at her old firm. She then went to work for the opposing firm. No evidence was presented that she worked on the case at the hiring firm. After a motion to disqualify was filed, the hiring firm sent her a memo instructing her to maintain confidential any information about the case that she had received while working for the former firm. The court stated:
[T]his evidence raises two rebuttable presumptions: that the nonlawyer employee actually obtained confidential information material to the case, and that the nonlawyer employee disclosed or will disclose such confidential information to the hiring firm. The burden of going forward then shifts to the client of the hiring firm, who must attempt to rebut at least one of these presumptions by proving . . .either that the nonlawyer employee did not acquire any confidential information material to the matter at issue while employed by the former firm, or that the nonlawyer employee has not disclosed any material confidential information and that the hiring firm has taken adequate measures to ensure that no such disclosure will occur. . . . At this point, the burden of going forward shifts to the client of the former firm, who must present evidence that the nonlawyer employee has actually disclosed material confidential information to the hiring firm, or that the nonlawyer employee has worked on the case or will necessarily be required to work on the case, or that the measures taken by the hiring firm to ensure that the nonlawyer employee does not disclose material confidential information are, or will be, ineffective.
The court declined to set out specific procedures to be implemented, but commented that "such measures should include admonishing the nonlawyer employee not to discuss the case with anyone in the hiring firm, restricting the nonlawyer employee from access to the computer and paper files related to the case, and prohibiting all attorneys and nonlawyer employees of the hiring firm from discussing the case with, or in the presence of, the nonlawyer employee." The court certified conflict with the decisions of the other DCAs.
The Second DCA has held that the court must hold an evidentiary hearing to determine whether “one party has obtained an unfair advantage over the other which can only be alleviated by removal of the attorney.” Id. at 741. Thus, screening the new employee will work. Esquire Care, Inc. v. Maguire, 532 So. 2d 740 (Fla. 2d DCA 1988). In Esquire Care, a secretary worked on the case at her old firm. Then she went to work for the firm representing the other side. At the new firm she did some work on the case, but did not reveal any confidential information and was told by her new employer not to discuss her knowledge of the case. The new employer received an opinion from ethics counsel of the Florida Bar that he could continue the representation.
The Third DCA has held that if the movant can show that the nonlawyer had access to confidential information in the previous employment, a rebuttable presumption arises that the nonlawyer has actual knowledge of confidential information. The burden then shifts to the hiring firm to prove that the nonlawyer does not have actual knowledge of confidential information. If the presumption is not rebutted, screening the nonlawyer will not work. First Miami Sec., Inc. v. Sylvia, 780 So. 2d 250 (Fla. 3d DCA2001).
In Koulisis v. Rivers, 730 So. 2d 289 (Fla. 4th DCA 1999), the Fourth DCA relied on Rule 4-1.10(b) and held that a secretary must be treated the same as an attorney for disqualification purposes. The moving party must make a prima facie case showing that the secretary had confidential information. The burden is then on the new firm to prove that she did not have confidential information. This allocation of the burden of proof ensures that close cases will be decided in favor of disqualification. Screening will not work.
In City of Apopka v. All Corners, Inc., 701 So. 2d 641 (Fla. 5th DCA 1997) a secretary had confidential information and went to work for the firm on the opposite side of the case, where she was screened. The Fifth DCA held that disqualification is required “only when there is evidence that the law firm obtained confidential information, thereby gaining an unfair advantage, from its new personnel.” Id. at 645. Thus, screening will work.
In FL Eth. Op. 86-5 (Aug. 1, 1986), based on the old Code of Professional Responsibility, the Bar acknowledged that the Code does not apply to non-lawyers, but stated that in the case of transferring non-lawyer personnel from one side of a case to another, the lawyers involved on each side have ethical responsibilities. The lawyers for the former firm must admonish the departing employee of the duty not to reveal confidential information. The lawyers for the new firm must not seek or permit disclosure of confidential information from the new employee and must not use such information if acquired. Thus, the opinion of the Bar was that disqualification is not required and screening will work.
1.10:400 Disqualification of Firm After Disqualified Lawyer Departs
In Nissan Motor Corp. v. Orozco, 595 So. 2d 240 (Fla. 4th DCA 1992), the court upheld the trial court's denial of a motion for disqualification of a firm under FL Rule 4-1.10, based in part on the fact that the offending attorney had departed the firm. This rationale was strongly questioned by the court in In re Outdoor Prods. Corp., 183 B.R. 645, 650 n.7 (Bankr. M.D. Fla. 1995): "[F]or some reason unknown to this Court, the court in Nissan places credence on the fact the tainted associate is terminated. There does not appear to be any authority to cure a conflict that has arisen under Rule 4-1.10(b), by terminating association with a tainted lawyer." Nissan appears to stand alone for the proposition that departure of a disqualified lawyer may save the law firm from disqualification.
1.10:500 Client Consent
[The discussion of this topic has not yet been written.]