Woods v. Radiation Therapy Services, Inc.
Filing
48
OPINION AND ORDER denying 12 Motion for attorney disqualification. Signed by Judge John E. Steele on 4/24/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANDREW L. WOODS,
Plaintiff,
v.
Case No: 2:16-cv-897-FtM-29MRM
RADIATION THERAPY SERVICES,
INC., a Florida Corporation,
d/b/a 21ST CENTURY ONCOLOGY,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant's Motion for
Attorney Disqualification (Doc. #12) filed on January 17, 2017.
Plaintiff filed a Memorandum in Opposition (Doc. 23) on January
31, 2017.
On February 6, 2017, the Court heard argument from
counsel on the motion, and it was otherwise taken under advisement.
Defendant seeks to disqualify Joseph I. Zumpano, Leon N. Paricios,
and Bryan R. Cleveland, as well as the law firm of Zumpano Patricio
& Winkler, P.A. (the Zumpano firm) from representing plaintiff in
this case.
Defendant argues that plaintiff’s witnesses will include many
of the same witnesses that were prepped in the previous litigation.
Dr. Dosoretz, a current member of defendant’s Board of Directors
and the former CEO, is expected to be a witness in this case
because he signed the employment agreement at issue and because it
is
alleged
that
Dr.
Dosoretz
acknowledged
and
agreed
to
the
obligation to pay the incentive bonuses but asked plaintiff to
defer payment.
bonus
that
Defendant
was
also
confidences
Dr. Dosoretz also paid a portion of the incentive
as
frozen
argues
to
and
that
how
otherwise
the
defendant
deferred
Zumpano
firm
interprets
the
was
its
balance.
privy
to
employment
agreements and contractual obligations.
“Because a party is presumptively entitled to the counsel of
his choice, that right may be overridden only if ‘compelling
reasons’ exist. [ ] The party moving to disqualify counsel bears
the burden of proving the grounds for disqualification.”
In re
BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003) (internal
citations omitted).
The professional conduct of members of the Middle District of
Florida Bar is governed by the Model Rules of Professional Conduct
of the American Bar Association, as modified and adopted by the
Supreme Court of Florida.
Local Rules, United States District
Court, Middle District of Florida, Rule 2.04(d).
Under Florida
Bar Rule of Professional Conduct 4-1.9,
A lawyer who has formerly represented a client
in a matter must not afterwards:
(a) 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 unless the
former client gives informed consent;
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(b)
use
information
relating
to
the
representation to the disadvantage of the
former client except as these rules would
permit or require with respect to a client or
when the information has become generally
known; or
(c) reveal information relating to the
representation except as these rules would
permit or require with respect to a client.
R. Regulating Fla. Bar 4-1.9.
It is undisputed that the Zumpano firm formerly represented
21st Century in a “matter.”
In 2012, a Dr. Ronald D. Castellanos
filed suit against 21st Century Oncology and others in Lee County
Circuit Court, Florida (the Castellanos case).
Dr. Castellanos
sued 21st Century for breach of an employment agreement, which
allowed him to practice medicine as an employee of 21st Century,
and for breach of a consulting agreement.
Dr. Castellanos sought
an accounting regarding unpaid compensation and declaratory relief
that non-compete provisions of the employment agreement were no
longer enforceable based on the breach.
Dr. Castellanos brought
claims against individual defendants for tortious interference,
conversion,
and
civil
theft.
Dr.
Castellano’s
employment
agreement was terminated in November 10, 2011, without payment of
compensation in excess of $1 million, and Dr. Castellano alleged
that he was owed at least $100,000 under the consulting agreement.
Bryan R. Cleveland of the Zumpano firm represented 21st
Century Oncology and the individual defendants.
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The Zumpano firm
spent over 120 hours preparing Dr. Dosoretz for deposition in the
Castellanos case at a significant cost.
The Zumpano firm also had
at least 16 conversations with the former General Counsel for 21st
century
regarding
litigation
strategy,
counterclaims,
and
settlement.
In the current case, the original Complaint (Doc. #2) was
removed to federal court on December 19, 2016.
In the Amended
Complaint (Doc. #32), plaintiff Andrew L. Woods seeks amounts due
and owing pursuant to an executive employment agreement that
provided for payment of large incentive bonuses for his role as a
lobbyist in connection with the federal government’s adoption of
stabilization initiatives vital to the interest of 21st Century
Oncology.
Plaintiff also acted as a senior company executive for
defendant.
Plaintiff seeks relief for breach of contract, a loss
of
plan
ERISA
restrictive
benefits,
provisions
of
declaratory
the
relief
employment
from
agreement,
certain
severance
payments, and certain COBRA payments.
The Zumpano firm may not represent plaintiff in the current
case against 21st Century if the current case is “a substantially
related
matter
in
which
that
person’s
[Woods]
interests
materially adverse to the interests of the former client
are
[21st
Century] unless the former client gives informed consent, . . .”
R. Regulating Fla. Bar 4-1.9(a).
The Comment to The Florida Bar
Rule provides that “[m]atters are ‘substantially related’ for
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purposes of this rule if they involve the same transaction or legal
dispute,
or
if
the
current
matter
would
involve
the
lawyer
attacking work that the lawyer performed for the former client.”
R. Regulating Fla. Bar 4-1.9 cmt.
Nothing in the current case
involves the Zumpano firm attacking its work for 21st Century in
the Dr. Castellano case.
Additionally, the two cases do not
involve the “same transaction or legal dispute.”
was
different,
contracts.
as
Woods
were
was
the
not
underlying
involved
services, as was Dr. Castellano.
in
Each termination
employment/consulting
providing
any
medical
The Court concludes that the
current case is not “a substantially related matter” to the Dr.
Castellano case, and therefore the Zumpano firm is not disqualified
under R. Regulating Fla. Bar 4-1.9(a).
Lawyers also owe an obligation of confidentiality to a former
client, and may not subsequently use information acquired in the
course of representing a client to the disadvantage of the client
unless permitted or required under the Rules Regulating the Florida
Bar, or the information has become generally known, or with the
former client's consent.
R. Regulating Fla. Bar 4-1.9(b).
As the
Comment to the Rule states, “the fact that a lawyer has once served
a client does not preclude the lawyer from using generally known
information about that client when later representing another
client. Information that has been widely disseminated by the media
to
the
public,
or
that
typically
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would
be
obtained
by
any
reasonably prudent lawyer who had never represented the former
client, should be considered generally known and ordinarily will
not be disqualifying.
The essential question is whether, but for
having represented the former client, the lawyer would know or
discover the information.”
R. Regulating Fla. Bar 4-1.9 cmt.
Additionally, “[i]n the case of an organizational client, general
knowledge of the client’s policies and practices ordinarily will
not preclude a subsequent representation; on the other hand,
knowledge of specific facts gained in a prior representation that
are relevant to the matter in question ordinarily will preclude
such a representation.”
Id.
The Court finds that defendant has
not established this ground for disqualification of the Zumpano
firm.
Although
both
cases
similarity ends there.
involved
employment
agreements,
the
The Castellanos case involved a doctor who
saw patients, while plaintiff in this case is a lawyer who was an
executive and lobbyist for defendant.
At the time of representing
Mr. Castellanos, Mr. Woods was not even a known factor.
The
Zumpano firm indicated that they did not actually depose Dr.
Dosoretz and cannot confirm if he was deposed at a later date after
their
representation
information.
because
they
were
not
privy
to
that
The Zumpano firm’s representation was not through
the end of the Castellanos case, and there is no evidence that
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they were made privy to relevant confidential information that
could be used in this case to disadvantage Mr. Woods.
Accordingly, it is hereby
ORDERED:
Defendant's Motion for Attorney Disqualification (Doc. #12)
is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of April, 2017.
Copies:
Counsel of Record
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24th
day
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