final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County, Rodolfo A. Ruiz, Judge. Lower Tribunal No.
Ferraro Law Firm and James L. Ferraro and Juan P. Bauta, II,
& Porter Kaye Scholer and Frances Daphne O'Connor and
Geoffrey J. Michael, (Washington, D.C.), for respondent
Philip Morris USA, Inc.; Carlton Fields Jorden Burt and
Jeffrey A. Cohen, Benjamine Reid and Douglas J. Chumbley;
Jones Day and Jason T. Burnette (Atlanta, GA), for respondent
R.J. Reynolds Tobacco Company.
SALTER, EMAS and LOGUE, JJ.
and Corazon Canta, plaintiffs in an
Engle-progeny tobacco case, petition for a writ of
certiorari quashing a trial court order disqualifying their
counsel. Concluding that the Cantas have not shown a
departure by the trial court from the essential requirements
of law-in this case, the provisions of applicable Rules
Regulating The Florida Bar-we deny the petition.
Facts and Procedural History
The Alleged Conflict; Early Disqualification Motions
Cantas retained The Ferraro Law Firm ("Ferraro
Firm") to represent them regarding their claims for
injuries and damages from smoking cigarettes manufactured by
the defendants/respondents, Philip Morris USA, Inc.
("PM") and R.J. Reynolds Tobacco Co.
("RJR"). The Cantas' lawsuit against PM and RJR
commenced in 2007.
2015, the Ferraro Firm hired attorney Paulo Lima, who had
previously been employed as an associate attorney at the New
York and Miami offices of Hunton & Williams, LLP
("Hunton Firm"). Importantly, Lima worked for the
Hunton Firm from 2005 through his 2015 departure, and during
that period he performed legal work on behalf of PM, a client
of the Hunton Firm. Lima's legal work, detailed in his
timekeeping records, included legal research and drafting
memoranda to assist PM in the defense of other
Engle-progeny tobacco cases. As part of that work,
Lima had access to PM's litigation databases and
confidential PM documents, and he attended meetings regarding
PM's legal strategy and defenses in tobacco cases.
Ultimately, the time records disclosed almost 375 hours
billed by Lima to PM regarding Engle-progeny cases,
and over 1500 billable hours on PM matters in total.
Lima joined the Ferraro Firm in May 2015, he immediately
began to represent clients of that firm in pending
Engle-progeny cases, including several appeals in
this Court. In his deposition taken in connection with
another Engle-progeny case,  Lima testified that
"one of the things I discussed with Mr. Ferraro here
when I was discussing my employment, " was that Lima
would handle Engle-progeny cases. Lima went on to
testify, however, and to substantiate in an affidavit, that
(a) no one at the Ferraro Firm ever asked him to disclose any
confidential information belonging to PM or RJR, and (b) at
no time did Lima ever discuss any confidential information
pertaining to PM or RJR with any employee or member of the
March 2016, PM and RJR began seeking the disqualification of
the Ferraro Firm in pending Engle-progeny cases
throughout Florida. The initial motions lacked significant
details that were later obtained by PM and incorporated in
subsequent motions in other cases. While several of the
initial motions were denied (and petitions for certiorari
directed at the denial orders were denied without
elaboration), subsequent motions for disqualification of the
Ferraro Firm in other pending Engle-progeny cases
were granted. It is noteworthy, however, that the
unsuccessful March 2016 motions to disqualify placed the
Ferraro Firm on notice that Lima's former client, PM,
claimed Lima had worked on confidential,
Engle-related legal issues and strategy.
Nonetheless, Lima continued to work on Engle-progeny
cases after the Ferraro Firm became aware of Lima's work
at PM and PM's objections.
months later, in June 2016, a trial court in the Orange
County Circuit Court granted PM's motion to disqualify
Lima and the Ferraro Firm in an Engle-progeny case
styled Hall v. R.J. Reynolds Tobacco Co., No.
2014-CA-005690-O. Lima and the Ferraro Firm did not seek
appellate review of that decision, which included detailed
findings of the work done by Lima for PM as reflected on his
time records. That court found that, among other things, Lima
"researched cigarette design defect issues raised in
Engle and the law of alternative causation, both of
which are litigated in Engle progeny cases to this
day, including . . . many Ferraro cases." The court also
determined that "The affidavit of Kimberly Harlowe
submitted by [PM] and not contested by the Ferraro Firm
establishes that Mr. Lima had access to, and did access,
[PM's] litigation databases and reviewed internal [PM]
documents, including highly confidential and privileged
December 2016, a Florida appellate court reached the same
conclusion as the trial court in Hall, quashing a
Broward County Circuit Court order denying PM's motion to
disqualify Lima and the Ferraro Firm in another
Engle-progeny case. Philip Morris USA Inc. v.
Caro, 207 So.3d 944 (Fla. 4th DCA 2016). In
Caro, the Fourth District rigorously analyzed the
"two-prong test for determining whether disqualification
is warranted, " id. at 948, and applied the
test to Lima's work for PM and his move to the Ferraro
Rule Regulating The Florida Bar 4-1.9(a) and the first prong
of that test, the court agreed with the trial court's
analysis that there had been an attorney-client relationship
between Lima and PM, creating an "irrefutable
presumption that confidences were disclosed during the
relationship." Id. (quoting State Farm Mut.
Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla.
1991)). As to the second prong, however-whether the matter in
which Lima or the Ferraro Firmrepresented Caro regarding claims
against PM "is the same or substantially related"
to the matter in which Lima represented PM-the Fourth
District disagreed with the trial court:
We disagree with the trial court's conclusion that
Lima's work for PM was not substantially related to the
issues in Caro's lawsuit against PM in which Lima is now
Caro's counsel. In so ruling, the trial court departed
from the essential requirements of law. While there are some
issues relating to Caro's case, and indeed in every
plaintiff's case involving Engle litigation, that are
unique to, and distinct from, defense matters on which Lima
previously worked, we cannot conclude that Lima's
extensive prior representation of PM in defending and
strategizing about Engle progeny cases was not substantially
related to at least some of the issues here. As PM has
argued, each Engle progeny case includes a plaintiff's
expert witness who testifies about the defendant
company's conduct relating to concealment of information
about the health risks of smoking and defective design of
cigarettes. This expert testimony is said to vary little from
case to case. This reaches beyond a unique plaintiff's
Id. at 949.
that PM's petition for certiorari should be granted, the
Fourth District granted the petition, quashed the order
denying PM's motion for disqualification, and directed
the trial court to grant the motion. Caro moved for rehearing
en banc, which was denied in January 2017.
This Case, and Lima's Termination of Employment
March 1, 2017, citing Caro and other authorities, PM
moved to disqualify Lima and the Ferraro Firm from further
representation in the present case. The following day, RJR
filed a similar motion, incorporating PM's recitation of
the facts and law, but adding that RJR had a joint defense
agreement with PM. RJR's motion attached an affidavit
stating that, while employed at the Hunton Firm, Lima had
access to confidential information about RJR and its defense
of Engle-progeny lawsuits through a
jointly-maintained tobacco litigation database.
the next day, March 3, 2017, the Ferraro Firm terminated
Lima's employment with the law firm. In its opposition to
the PM and RJR motions for disqualification in this case
(Canta) and other then-pending cases, the Ferraro
Firm relied upon the previously-described affidavits of Lima
and every lawyer in the Ferraro Firm disclaiming knowledge or
discussion regarding any confidences of PM or RJR. The
Ferraro Firm's opposition to disqualification in this
case, filed March 6, 2017, also contended that the