Shaffer v. Independent Administrative Services, LLC et al

Filing 23

ORDER denying 7 Motion to Disqualify Counsel ; denying 7 Motion to Strike Answer. Signed by Judge Susan C Bucklew on 7/2/2018. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINDA SHAFFER,
Plaintiff,
v.

Case No. 8:18-cv-853-T-24 CPT

INDEPENDENT ADMINISTRATIVE
SERVICES, LLC, and AMERILIFE
GROUP, LLC,
Defendants.
______________________________/
ORDER
This cause comes before the Court on Plaintiff’s Motion to Disqualify Defendants’
Counsel and to Strike Answer. (Doc. No. 7). Defendants oppose the motion. (Doc. No. 14). As
explained below, the motion is denied.
I. Background
Plaintiff Linda Shaffer was employed by Defendants until they terminated her on October
11, 2016 when she was over fifty years old. As a result, she filed a complaint against
Defendants, in which she contends that during her employment, she experienced age
discrimination, gender discrimination, and retaliation. She also contends that Defendants
violated the Equal Pay Act.
In her complaint, Plaintiff alleges that she reported to Defendants’ General Counsel, R.
Nathan Hightower and that he treated female employees differently than he treated male
employees. For example, Plaintiff contends that Hightower yells and screams at female
employees and bullies them while treating similarly situated male employees with respect.

In response to her complaint, Defendants filed their Answer and Affirmative Defenses.
(Doc. No. 6). Hightower represents Defendants and signed the Answer and Affirmative
Defenses. Ryan Scully, who works with Hightower in Defendants’ legal department, is also
representing Defendants in this case.
II. Motion to Disqualify and Strike
Plaintiff filed the instant motion to disqualify Hightower and Scully from representing
Defendants and to strike Defendants’ Answer and Affirmative Defenses signed by Hightower.
Plaintiff contends that Hightower should be disqualified pursuant to Florida Rule of Professional
Conduct 4-3.7. Rule 4-3.7(a) provides the following:
(a) When Lawyer May Testify. A lawyer shall not act as advocate at
a trial in which the lawyer is likely to be a necessary witness on
behalf of the client unless:
(1)
the testimony relates to an uncontested issue;
(2)
the testimony will relate solely to a matter of formality
and there is no reason to believe that substantial
evidence will be offered in opposition to the
testimony;
(3)
the testimony relates to the nature and value of legal
services rendered in the case; or
(4)
disqualification of the lawyer would work substantial
hardship on the client.
Florida Rule of Professional Conduct 4-3.7(a).
Defendants respond that this rule only applies to Hightower representing Defendants at
trial if Hightower is called as a witness; it does not prohibit Hightower from representing
Defendants in pretrial proceedings. The Court agrees with Defendants. As explained by one
court:
Rule 4-3.7 of the Rules of Professional Conduct provides that a
“lawyer shall not act as advocate at a trial in which the lawyer is
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likely to be a necessary witness on behalf of the client.” The key
words here are “at a trial.” Therefore, it follows that a lawyer may act
as an advocate at pre-trial (before the start of the trial) and post-trial
(after the judgment is rendered) proceedings.
Columbo v. Puig, 745 So. 2d 1106, 1107 (Fla. 3d DCA 1999); see also In re Thompson, 2006
WL 1598112, at *1 (11th Cir. 2006)(stating that “Florida courts have limited counsel's
disqualification under the Rule, in cases where counsel's disqualification arises because of his
role as a witness, to counsel's appearance at trial and have allowed such counsel to participate in
pretrial and posttrial matters”).
Based on the above, the Rule does not allow the Court to disqualify Hightower from
representing Defendants in pretrial proceedings. Instead, the Rule mandates that the Court
determine whether Hightower should be disqualified from representing Defendants at trial if he is
called as a witness. Defendants urge the Court to allow discovery to progress before making this
determination. The Court is persuaded by Defendants’ argument and will allow Plaintiff to raise
the issue again after discovery has concluded and any dispositive motions have been filed.
Accordingly, the Court denies Plaintiff’s motion to disqualify Hightower from representing
Defendants in pretrial and post-trial proceedings.
Plaintiff also moves to disqualify Scully and Defendants’ legal department from
representing Defendants based on her contention that Hightower should be disqualified. Florida
Rule of Professional Conduct 4-3.7(b) controls this issue and provides the following:
(b) Other Members of Law Firm as Witnesses. A lawyer may act as
advocate in a trial in which another lawyer in the lawyer’s firm is
likely to be called as a witness unless precluded from doing so by rule
4-1.7 [Conflict of Interest - Current Clients] or 4-1.9 [Conflict of
Interest - Former Clients].
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Florida Rule of Professional Conduct 4-3.7(b).
Based on this Rule, Scully and Defendants’ legal department are not prohibited from
representing Defendants without a showing that a conflict of interest between Defendants and
Scully (or other members of the legal department) exists. There has not been such a showing,
and therefore, the Court denies Plaintiff’s motion to disqualify Scully and Defendants’ legal
department from representing Defendants.
Finally, Plaintiff moves to strike Defendants’ Answer given that it was signed by
Hightower, whom Plaintiff contends should be disqualified. However, as previously stated,
Hightower may represent Defendants in pretrial proceedings, including by filing Defendants’
Answer. Accordingly, the Court denies Plaintiff’s motion to strike Defendants’ Answer.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion to Disqualify
Defendants’ Counsel and to Strike Answer (Doc. No. 7) is DENIED. Plaintiff may re-file the
motion after discovery has concluded and any dispositive motions have been filed to address
whether Hightower should be disqualified from representing Defendants at trial.
DONE AND ORDERED at Tampa, Florida, this 2nd day of July, 2018.

Copies to:
Counsel of Record
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