Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.

Filing 85

OPINION AND ORDER overruling 67 Plaintiffs' Objections to Magistrate's Decision on Motion for Disqualification of Amy S. Rubin, Esq. and the Law Firm of Fox Rothschild. See Opinion and Order for details. Signed by Judge John E. Steele on 7/15/2013. (AAA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, BRIAN BRUCE
BERLINGER,
and
HEATHER
ANNE
BERLINGER, as beneficiaries to the
Rosa B. Schweiker Trust and all of
its related trusts,
Plaintiffs,
vs.

Case No.

2:11-cv-459-FtM-29UAM

WELLS FARGO, N.A. as Successor to
WACHOVIA BANK, N.A., as Corporate
Trustee to the Rosa B. Schweiker
Trust, and all of its related trusts,
Defendant/Third
Party Plaintiff,
vs.
BRUCE
D.
CASSELBERRY

BERLINGER

and

SUE

Third
Party
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on plaintiffs’ Objections
to Magistrate’s Decision on Motion for Disqualification of Amy S.
Rubin, Esq. and the Law Firm of Fox Rothschild (Doc. #67) filed on
May 1, 2012.
I.
In

their

Berlinger,

First

Brian

Amended

Bruce

Complaint,

Berlinger,

and

plaintiffs
Heather

Anne

Stacey

Sue

Berlinger

(plaintiffs), beneficiaries to the Rosa B. Schweiker Trust and all

of its related trusts (Trusts), allege that Wells Fargo, N.A.
(Wells Fargo), corporate co-trustee of the Trusts, wrongfully
distributed trust funds to Sue Casselberry (Ms. Casselberry), as a
result of her 2007 divorce settlement with Bruce D. Berlinger (Mr.
Berlinger).

(Doc. #25, pp. 7, 8.)

Plaintiffs moved to disqualify

Wells Fargo's counsel, Amy S. Rubin (Rubin), due to an alleged
conflict of interest based on counsel's involvement in the prior
divorce action between Mr. Berlinger and Ms. Casselberry.

(Doc.

#48.)
In the divorce proceedings, a Joint Defense Agreement (JDA)
was executed and signed on behalf of Mr. Berlinger and Wells Fargo,
by their attorneys, John Asbell and Amy S. Rubin.

(Id., p. 3.)

The JDA provided for the signatories to cooperate with each other
and to share privileged information in their joint defense against
Ms. Casselberry.

(Id.)

In their motion, plaintiffs argued that

Rubin's prior involvement in the divorce proceedings disqualified
her from representing Wells Fargo in this case.

(Doc. #48.)

They

asserted that: (1) during the divorce action, Rubin filed a motion
for partial summary judgment and an Answer "in accordance with the
understanding produced by the [JDA] . . ."; (2) Rubin's Answer
admitted that she owed a fiduciary duty to plaintiffs; and (3)
Rubin relied on information obtained from her representation of
Wells Fargo during the divorce proceedings to subpoena documents
showing that plaintiffs signed releases which waived their claims

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to a portion of the Trusts' corpus.

(Id.)

On April 19, 2012, the

Magistrate Judge issued an Order denying plaintiffs’ motion. (Doc.
#67.)
II.
Plaintiffs object to the Magistrate Judge's Order pursuant to
Fed. R. Civ. P. 72(a).

A district court reviews an objection to a

non-dispositive order of a magistrate judge to determine whether
the order was clearly erroneous or contrary to law.

Fed. R. Civ.

P. 72(a); 28 U.S.C. § 636(b)(1)(A).
In their objections, plaintiffs allege that the Magistrate
Judge misinterpreted Jacob v. Barton, 877 So. 2d 935 (Fla. 2d DCA
2004)

and

held

in

error

that

relationship

between

proceedings.

there

Jacob,

Florida’s

and

Second

Rubin

no

attorney-client

(Doc. #67, p. 5.)

In

plaintiffs

was

during

the

divorce

Court

of

Appeals

District

considered whether plaintiff could compel discovery of privileged
documents relating to the billing records of the attorney hired to
assist with the administration of the trust.

877 So. 2d at 936.

The tension arose from the fact that the plaintiff was both the
beneficiary
litigation.

of

the

Id.

trust

and

the

trustee's

adversary

in

the

As the beneficiary, plaintiff was entitled to

information about and an accounting of the trust assets, but as an
opposing party, he could not access privileged information related
to the parties' litigation.

Id.

To resolve the tension, the court

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set out to determine the "real client" of the attorney by deciding
"whose interests the attorneys represent[ed] - the trustee's or the
beneficiary's."

Id. at 937.

As the Jacob court explained:

"[u]sually, a lawyer retained by a trust represents the trustee,
not the beneficiary . . . In some circumstances, however, the
beneficiary may be the person who will benefit from the legal work
the trustee has instructed the attorney to perform . . . In that
situation, the beneficiary may be considered the attorney's 'real
client'. . . ."
Plaintiffs

Id.
allege

that

under

Jacob,

they

formed

an

attorney-client relationship with Rubin because they benefitted
from her legal work during the divorce proceedings.
6.) The Magistrate Judge disagreed.

(Doc. #67, p.

(Doc. #58, p. 5.)

Plaintiffs

object that the Magistrate Judge mistakenly interpreted the term
"benefit" to mean legal representation that brings an immediate
pecuniary benefit to a party.

(Doc. #67, p. 6.)

Instead, plaintiffs argue that this Court should apply Riggs
Nat’l Bank of Washington D.C. v. Zimmer, 355 A.2d 709 (Del. Ch.
1976).

In Riggs, which considered whether the trustees’ attorney-

client privilege prevented the disclosure of a memorandum to the
beneficiaries, the Court found the beneficiaries to be the “real
clients” where: (1) the content of the advice was for the benefit
of the trust, not the trustees; (2) the advice was paid for with

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assets of the trust, not the trustees; and (3) no adversarial
proceeding against the trustees was pending.

Id. at 711.

The Court agrees with the Magistrate Judge that neither Jacob
nor Riggs requires a finding of an attorney-client relationship
between plaintiffs and Rubin.

Plaintiffs have not explained any

"benefit" derived from Rubin's representation of Wells Fargo during
the divorce proceedings. Plaintiffs did not sign the JDA and there
is no indication that they were aware of it.

(Doc. #48-2, p. 5.)

Instead, as a result of the divorce proceedings, plaintiffs signed
releases which relinquished their rights to a portion of the funds
held in the Trusts, and the releases advised plaintiffs that they
"may have separate representation to review this document.”
#56-3.)

(Doc.

Moreover, as the Magistrate Judge concluded, neither the

motion for partial summary judgment nor the answer filed during the
divorce proceedings indicate that Rubin represented plaintiffs.
(Doc.

#58,

p.

6.)

Therefore,

the

record

does

not

support

plaintiffs' assertion that Rubin benefitted or represented their
interests during the divorce proceedings.
The Court concludes that plaintiffs have not established
either that the Order was clearly erroneous or that it was contrary
to law and, thus, plaintiffs’ objections are overruled.
Accordingly, it is now
ORDERED:

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Plaintiffs’ Objections to Magistrate’s Decision on Motion for
Disqualification of Amy S. Rubin, Esq. and the Law Firm of Fox
Rothschild (Doc. #67) are OVERRULED.
DONE AND ORDERED at Fort Myers, Florida, this 15th day of
July, 2013.

Copies: Counsel of record

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