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March 2017

Gordon & Rees Appellate Team Obtains Writ of Certiorari Causing Disqualification of Opposing Party’s Lead Counsel

Gordon & Rees Miami partners David M. Gersten and Joseph A. Sacher, with associate Christopher A. Noel, succeeded in obtaining a writ of certiorari from the Florida Third District Court of Appeal, requiring the trial court to disqualify an opposing party’s lead counsel because of a conflict of interest. A writ of certiorari is considered an extraordinary writ in the State of Florida. Notably, this case is the seminal and only case in Florida addressing Florida Rule of Professional Responsibility 4-1.18. Reflecting this important decision, the Third District invited counsel to have oral argument at the University of Miami School of Law, where Mr. Sacher presented oral argument before the first year law student class, in a yearly tradition that exposes law students to appellate practice.

In an ongoing and highly contentious complex case involving litigation in more than four courts, as well as three appeals, Gordon & Rees's clients challenged the appearance of the fourth concurrent law firm of record for the opposing party. The Miami team's argument was that, prior to appearing for the opposing party, they consulted a partner in the opposing party's law firm and disclosed attorney-client privileged and otherwise confidential strategies. And, that disclosure imputed the conflict of interest to the entire law firm.

The motion to disqualify relied upon Florida Rule of Professional Responsibility 4-1.18, which was enacted in 2006 to clarify that, when an attorney-client relationship exists with a prospective client, the attorney and his or her firm can not later represent another party in the same or substantially similar litigation without fulfilling specific requirements (which were not met in this case). Despite hearing unrebutted and unrefuted testimony that privileged and confidential information was conveyed, the trial court denied Gordon & Rees's motion to disqualify opposing counsel. The trial court, however, ordered the sequestration from the case of the partner in the opposing law firm, who Gordon & Rees's attorneys consulted.

In its written opinion issuing the writ of certiorari, the Third District declined to recede from prior Florida law involving attorney conflicts of interest and flatly rejected the opposing law firm’s arguments. The opinion cements Florida law involving attorney-client relationships and various factual and legal conflicts.

David M. Gersten
Joseph A. Sacher