OIL, LLC and MAXIMILIANO L. RUSSO, Petitioners,
STAMAX CORP., Respondent.
final until disposition of timely filed motion for rehearing.
Petition for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Patti Englander
Henning, Judge; L.T. Case No. 14 CA 007421.
T. Forman of the Law Offices of Jason T. Forman, P.A., Fort
Lauderdale, for petitioners.
J. Cobb and Dylan M. Fulop, of Cobb Eddy PLLC, Fort
Lauderdale, for respondent.
OIL, LLC and Maximiliano L. Russo, seek certiorari review of
an order disqualifying their attorney based upon the
court's conclusion that counsel violated Florida Bar Rule
4-1.9. We grant the petition and quash the order because
counsel for the Petitioners did not represent the Respondent
and did not participate in confidential communications with
Stamax Corp., was the holder of a license from Apple Inc.,
allowing it to sell and service Apple products as an
authorized reseller. Based on its agreement with Apple,
Stamax operated a number of stores in South Florida. In 2012,
Stamax entered into an agreement with Petitioner, OIL, LLC,
that granted OIL the ability to use Stamax's trade name
to sell Apple products in Fort Lauderdale.
dispute arose between OIL and Stamax due to OIL's
accumulation of debt from forced purchases of product
supplied by Stamax. As a result of this dispute, OIL sued
Stamax for breach of contract and fraud related to the 2012
agreement between the parties.
after the lawsuit was filed, Stamax filed a verified motion
to disqualify counsel for OIL based upon its claim that the
attorney had previously represented it through its agent,
Fernando Lund. Stamax alleged that Lund had discussed the
Stamax/Apple agreement with the attorney and provided a copy
to the attorney. Stamax also alleged that Lund discussed its
"business model, corporate governance issues, . . . a
shareholder agreement[, ] and an issue with a store [under
construction] in Pembroke Pines." Stamax asserted that
as a result of these discussions, the attorney had offered to
represent it and had prepared a draft engagement agreement
that Stamax never executed.
October 2015, an evidentiary hearing was held before Circuit
Judge Dale Ross. At the hearing, Lund testified that he could
not recall any specific legal advice that the attorney had
given him and "maybe even they were personal,
maybe." Lund also testified that he had a meeting with
the attorney at his office during which "the business
models" of Stamax were discussed. However, Lund stated
that the principal for OIL was present during the entirety of
the discussions. In response to a question from the judge,
Lund stated that he did have another meeting with the
attorney, however, all of the discussions regarding Stamax
occurred at the meeting with OIL's principal. Finally,
Lund testified that the only document relevant to the action
that was disclosed to the attorney was the Stamax/Apple
request of the new counsel for Stamax, who substituted as
counsel after the hearing before Judge Ross, in December
2016, a hearing was held before Circuit Judge Patti Englander
Henning. Judge Henning noted that no order had been entered
by her predecessor after the October 2015 evidentiary
hearing. While noting that she had carefully reviewed the
transcript of that hearing, she offered the parties the
opportunity to present any additional evidence that they
response, counsel for Stamax stated that with "previous
counsel" for his client and OIL "there had been a
lot of bickering back and forth on matters that maybe
weren't germane to the ultimate issues in the case."
He stated that he had spoken with counsel for OIL, and
"we weren't going to offer any additional witnesses
or testimony…. Ultimately, we were looking for a
Henning stated that she had reviewed the transcript and found
the testimony of Lund to be credible. She stated at the
hearing that counsel for OIL was disqualified and promptly
issued a written order. OIL timely sought ...