BROWN v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
Filing
147
ORDER denying 139 MOTION to Disqualify Counsel. The stay is lifted, and all previous deadlines remain unchanged. Signed by JUDGE RICHARD SMOAK on 10/5/2012. (Mediation Report due by 10/9/2012. Jury Trial set for 12/10/2012 08:30 AM in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK) (jem)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
LYNETTE GINN BROWN,
Plaintiff,
v.
CASE NO. 4:09-cv-171-RS-CAS
FLORIDA DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES,
Defendant.
____________________________________/
ORDER
Before me is Defendant’s Motion to Disqualify Plaintiff’s Counsel (Doc.
139) and Plaintiff’s Response (Doc. 146). Defendant has moved to disqualify the
plaintiff’s law firm and attorney Ashley Moore because the firm entered a
relationship with Moore, who worked on this very case as an attorney for
Defendant. The attorney herself of course cannot work on the case or assist the
plaintiff’s law firm in its prosecution of the case. See R. Regulating Fla. Bar 4-1.9
& 4.1-11. The attorney and the firm recognize this. But the firm’s relationship
with the attorney disqualifies the entire firm only if the attorney is “associated”
with the firm. Id. at R. 4-1.10 & R. 4-1.11(b). The relief requested in Defendant’s
Motion is DENIED because the firm and the attorney entered only an outsourcing
relationship that did not rise to the level of an association.
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The Rules Regulating the Florida Bar govern attorney conduct in this district
except when federal law or court rules provide otherwise. See N.D. Fla. Loc. R.
11.1(E)(1). Federal law and court rules do not provide more stringent standards
than the Florida Bar rules in these circumstances, Plaintiff’s law firm may stay in
the case if the Florida Bar rules do not prohibit it from doing so.
The attorney Ashley Richardson Moore was an Assistant Attorney General
for the Office of the Attorney General of the State of Florida. She represented
Defendant and worked on this case. Rules 4-1.9 and 4.1-11 make clear that Ms.
Moore cannot now represent the plaintiff, use to the defendant’s disadvantage
information obtained while representing the defendant, or reveal information—
obtained while representing the defendant—to the plaintiff or the plaintiff’s law
firm or for that matter to anyone else. Rule 4-1.9 provides:
A lawyer who has formerly represented a client in a matter shall
not thereafter:
(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;
(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.
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R. Regulating Fla. Bar 4-1.9.
Rule 4-1.11(a) provides:
Representation of Private Client by Former Public Officer or Employee.
A lawyer who has formerly served as a public officer or an employee of the
government:
(1) Is subject to rule 4-1.9(b) and (c); and
(2) Shall not otherwise represent a client in connection with a matter in
which the lawyer participated personally and substantially as a public
officer or employee, unless the appropriate government agency gives its
informed consent, confirmed in writing, to the representation.
Ms. Moore left employment at the OAG to work at Sniffen & Spellman,
P.A. For personal and family reasons, Ms. Moore resigned her associate position
with the Sniffen firm and went to work instead for the firm of Marie A. Mattox,
P.A. The relationship was not a typical associate relationship. Ms. Moore was to
work from home preparing summary-judgment responses on specific cases as
assigned. There was some prospect that in the future Ms. Moore might also draft
complaints. Ms. Moore was to be paid a set hourly rate without the health and
retirement benefits available to attorneys employed at the firm’s offices. The firm
and Ms. Moore did not address how long the relationship would last and did not
define the relationship with precision. This was a relationship of indefinite
duration, terminable at will by either side, with no expectation that Ms. Moore
would ever have client contact or responsibility for cases beyond drafting papers
for review by another attorney. There was no expectation that Ms. Moore would
advance to a different or higher position within the firm.
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The Mattox firm has represented the plaintiff in this case from the outset.
Before entering the relationship with Ms. Moore, the firm gave little attention to
the possibility that doing so would disqualify the firm from handling this case and
others on which Ms. Moore had worked. The firm attorney handling both this case
and the hiring of Ms. Moore was Ms. Mattox herself. She assumed with little
analysis that because Ms. Moore would not work on or assist with this case, there
would be no issue. It is uncontested that Ms. Moore has not worked for the Mattox
firm on this case and has not violated Rule 4-1.9.
But Rule 4-1.9 is not the only relevant provision. Rule 4-1.10(b) addresses
the imputed disqualification of an entire firm when it hires an attorney who is
disqualified from working on a case under Rule 4-1.9. The imputeddisqualification rule provides:
Former Clients of Newly Associated Lawyer. When a lawyer
becomes associated with a firm, the firm may not knowingly
represent a person in the same or a substantially related matter in
which that lawyer, or a firm with which the lawyer was associated,
had previously represented a client whose interests are materially
adverse to that person and about whom the lawyer had acquired
information protected by rules 4-1.6 and 4-1.9(b) and (c) that is
material to the matter.
R. Regulating Fla. Bar 4-1.10(b) (emphasis added). Screening an associate who
previously represented a client with adverse interests while the associate was in
private practice—sometimes referred to as erecting a “Chinese wall”—does not
prevent a firm’s imputed disqualification. Compare id. (making no provision for
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screening), with id. at R. 4-1.11(b)(1) (allowing screening when the associate
previously represented a client with adverse interests while the associate was a
public employee).
Under the plain language of Rule 4-1.10(b), the Mattox firm is disqualified
if Ms. Moore became “associated” with the firm. The meaning of “associated” is
not completely clear. But one thing is clear: not every lawyer who is paid by a law
firm to do work of a legal nature is “associated” with the firm. Thus, for example,
a firm can outsource research or other support services so long as the firm
complies with any applicable requirements on billing and on disclosures to the
client. See, e.g., , ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 451
(2008) (discussing the lawyer’s obligation when outsourcing legal and nonlegal
support services); ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 420
(2000) (discussing the surcharge to the client for use of a contract lawyer); see also
ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 356 (1988)
(discussing temporary lawyers). An attorney to whom work is outsourced—for
example, an attorney who contracts to do research or draft pleadings from the
attorney’s own premises on the attorney’s own schedule—ordinarily is not an
associate.
There was a time when relationships like this were rare. But that is no
longer so. Indeed, for reasons like those that motivated Ms. Moore, and for
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reasons that are similar but far less compelling, an increasing number of attorneys
provide legal services in nontraditional settings. A rigid system that prevented the
practice would serve little purpose.
Determining whether an attorney is associated or unassociated requires an
analysis of all the circumstances. No one factor is determinative in every case.
Here Ms. Moore works only from home, does only work for review by another
attorney of a kind that can properly be outsourced, has no client contact or
expectation of advancement, and does not receive the health and retirement
benefits the firm makes available to associates. Ms. Moore works only for the
Mattox firm—it can provide as much work as she currently wishes to do—but Ms.
Moore is free to do contract work for others as well, if at any time she chooses to
do so. In substance, this is an outsourcing relationship. The Rule 4-1.10 imputeddisqualification provision does not apply.
Defendant also contends that plaintiff’s law firm should be disqualified
under R. Regulating Fla. Bar 4-1.11(b) which states:
Representation by Another Member of the Firm. When a lawyer is
disqualified from representation under subdivision (a), no lawyer in a firm
with which that lawyer is associated may knowingly undertake or continue
representation in such a matter unless:
(1) The disqualified lawyer is timely screened from any participation in the
matter and is directly apportioned no part of the fee thereform; and
(2) Written notice is promptly given to the appropriate government agency to
enable it to ascertain compliance with the provisions of this rule.
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(emphasis added). This rule also required that Ms. Moore be associated with
plaintiff’s law firm, and as discussed above, she is not. Therefore, the Rule 4-1.11
imputed-disqualification provision does not apply.
In reaching this conclusion, I have not overlooked two additional
considerations. First, some superficial indicia cut the other way. Ms. Moore
obtained a Mattox-firm email address, called herself an associate and used the
firm’s physical address when she updated her Florida Bar filing, and received a
first paycheck that treated her as an employee, not as an independent contractor.
When the disqualification issue arose, the firm and Ms. Moore walked some of this
back, giving the impression of an attempted cover-up. But the substance of the
relationship is much more important than where the attorney gets her email or
whether the firm pays her employment and Medicare taxes. In substance, the firm
has outsourced work to Ms. Moore.
Second, Defendant’s lay representatives are concerned that Ms. Moore sat in
on confidential discussions and now has a relationship with the plaintiff’s law firm.
The concern is understandable. But Ms. Moore has an obligation to maintain the
defendant’s confidences. For all that appears in this record, Ms. Moore has
complied with her obligation and will continue to do so. This order mandates it. A
cynic might doubt an attorney’s willingness to comply with an obligation of this
kind, but a knowledgeable observer with full knowledge of the profession and the
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circumstances would not. Defendant’s interests must be protected, but Plaintiff
also has an interest at stake here: the interest in being represented by the attorney
she has chosen. That attorney has not represented the defendant and has no access
to the defendant’s confidential information.
The plaintiff’s law firm is not disqualified.
For these reasons,
IT IS ORDERED:
1.
The Motion to Disqualify Counsel (Doc. 139) is DENIED.
2.
The attorney Ashley Richardson Moore must not assist in any way in
representing the plaintiff in this case, must not use information relating to this case
to the disadvantage of the plaintiff, and must not reveal information relating to her
representation of the defendant except as the Rules Regulating the Florida Bar
explicitly permit or require. Ms. Moore and Marie A. Mattox, P.A.—including
any representative of that firm—must not communicate about this case at all,
except as necessary for any further litigation or appeal on the disqualification issue
or as necessary to ensure that Ms. Moore is appropriately screened from this case.
Any communication necessary for any further litigation or appeal on the
disqualification issue or necessary to ensure that Ms. Moore is appropriately
screened must not touch upon the merits or any confidential information obtained
by Ms. Moore during her representation of the defendant.
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3.
The stay is lifted, and all previous deadlines remain unchanged.
ORDERED on October 5, 2012.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
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