final until disposition of timely filed motion for rehearing.
for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; John J. Murphy,
III, Judge; L.T. Case No. 14-24204(19).
P. Bauta, II, and James L. Ferraro of The Ferraro Law Firm,
Miami, for petitioner.
Frances Daphne O'Connor and Geoffrey J. Michael of Arnold
& Porter Kaye Scholer LLP, Washington, DC, for respondent
Philip Morris USA Inc.
T. Burnette of Jones Day, Atlanta, GA, for respondent R.J.
Reynolds Tobacco Company.
Balaban seeks certiorari review of a trial court order
granting a motion to disqualify the Ferraro Law Firm
("the Ferraro firm") from representing her in a
pending civil action against Philip Morris USA, Inc. (PM USA)
and R.J. Reynolds Tobacco Company (RJR). Certiorari lies to
review this order denying disqualification. Philip Morris
USA Inc. v. Caro, 207 So.3d 944, 949 (Fla. 4th DCA
trial court granted the motion based on this Court's
recent decision in Caro, where we quashed a trial
court order denying PM USA's motion to disqualify the
Ferraro firm and its attorney Paulo Lima ("Attorney
Lima"). Id. at 951. However, the circumstances
in this case distinguish it from Caro and compel a
different analysis altogether, including application of a
different provision of the Rules Regulating the Florida Bar.
Thus, the trial court departed from the essential
requirements of law in finding Caro dispositive. The
court also departed from the essential requirements of law in
failing to make the required findings of fact under the
correct rule and on the issue of RJR's standing to join
in the motion to disqualify. We grant the petition, quash the
trial court's order, and return the case to the trial
court for further proceedings consistent with this opinion.
stated, petitioner sued PM USA, RJR, and other defendants in
2014 in one of many Engle progeny cases involving
cigarette smokers who suffered injury or died as a result of
smoking. PM USA moved to disqualify Attorney Lima and the
Ferraro firm from representing petitioner, alleging that
Attorney Lima had previously represented PM USA while
employed by Hunton & Williams, LLP ("the Hunton
firm"). The motion to disqualify included allegations
that Attorney Lima billed more than 1, 500 hours on PM USA
matters including more than 1, 300 hours defending PM USA in
smoking and health litigation while working at the Hunton
firm, with nearly 375 hours spent specifically on
Engle tobacco-related issues. PM USA also alleged
Attorney Lima had access to PM USA's litigation databases
and had reviewed its internal documents, including those that
were highly confidential and privileged. PM USA therefore
claimed Attorney Lima and the Ferraro firm had an
impermissible conflict of interest precluding representation
of petitioner as the plaintiff in this case against it. RJR
joined in the motion.
motion cited Rule Regulating The Florida Bar 4-1.10(b) on
imputation of conflicts of interest, which provides as
(b) 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.
pointed out in her opposition to this motion that Attorney
Lima had left employment with the Ferraro firm shortly before
the motion to disqualify was filed in this case. She argued
that this event distinguished the facts in this case from
those in Caro. In Caro, this Court applied
Rule 4-1.10(b) and concluded that the movant, PM USA, had
demonstrated that Attorney Lima had actual knowledge of
material confidential information. Caro, 207 So.3d
at 950. We then ruled that the plaintiff's attorney in
that case had not met the burden to prove that Attorney Lima
had not actually acquired such information. Id. at
argued that because Attorney Lima was no longer associated
with the Ferraro firm at the time the motion to disqualify
was filed, this was no longer a case involving a former
client of a newly associated lawyer. Rather, the case now
involved the client of a formerly associated lawyer and
therefore Rule 4-1.10(c) controlled. That Rule, in turn,
provides as follows:
(c) Representing Interests Adverse to Clients of
Formerly Associated Lawyer. When a lawyer has
terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with
interests materially adverse to those of a client ...