At the end of December, the Florida Supreme Court quietly laid to rest a nearly four year old squirmish between a defense-attorney-turned-plaintiff-attorney and his former nursing home client. In doing so, after two trips to the Fourth DCA and one trip to the Supremes, we have an interesting swath of case law which clarifies the rules for lawyers moving firms, particularly from a defense firm to a plaintiff firm.
The facts of the underlying case in Peggy Bradley as Personal Representative of the Estate of Buford Allen Fennell v. Health Care & Retirement Corp. of America reveal a fairly standard nursing home lawsuit (ulcers and falls) arising from a January 2002 – September 2005 admission period. Meanwhile, a West Palm Beach insurance defense lawyer worked for the defendant on similar cases at various times from February 2001 – December 2004. It was introduced that the lawyer worked 2,100 hours for the former client in over 60 cases. In January 2005, he switched law firms and became Plaintiff’s counsel. The defendant moved to disqualify the lawyer and the Palm Beach Circuit Court denied the motion.
In Health Care v. Bradley I (December 2006), the Fourth DCA, in a per curiam rehearing, held that the inquiry was whether Rules Regulating the Florida Bar 4-1.9 and 4-1.10 had been violated, specifically whether the pending matter was the “same or a substantially related matter” in comparison to the lawyer’s prior cases wherein he represented the defendant. The Court noted there was an irrebutable presumption that confidences are disclosed in the course of the attorney-client relationship but disqualification of counsel was not required merely because of that irrefutable presumption.
Upon remand, without further evidence, the trial court again denied the motion.
In Health Care v. Bradley II (July 2007), the Fourth DCA (Gross, Shahood and Pollen) focused on the “substantially related” test and determined that the instant matter was not the “same” matter as counsel had previously defended. Moreover, the case at bar was not “substantially related” to counsel’s prior defense work. Despite the number of cases and hours worked for the former client, the Court felt that the prior cases did not involve the same transaction nor did the lawyer have to attack his prior work. More succinctly, the Court found the lawyer had handled a “type of problem” for the defendant and then represented an adverse party in a “wholly distinct problem of that type.” With that, the appellate court held that there was no error in denying the motion to disqualify.
The defendant appealed to the Florida Supreme Court, claiming a conflict with another intermediate district court opinion.
In Health Care v. Bradley III, the Florida Supreme Court acknowledged that it had taken jurisdiction but then decided that it did not care that “jurisdiction was improvidently granted.” Note: this is not the only case where the Florida Supreme Court changed its mind regarding jurisdiction on the eve of 2008.
Thus, the standard for disqualification under Rule 4-1.9 is a test of whether an attorney’s representation of a party adverse to a former client is the “same or substantially related” to counsel’s prior work for the former client, with little importance placed on the number of cases or hours previously worked. Indeed, the “irrebutable presumption” standard suggests that it makes little difference if the lawyer had previously worked 100 or 1,000 hours for his former client — the narrow question of disqualification is whether the now-adverse-lawyer is working on the same or substantially related matter.