Petition 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, D.C., for
respondent Philip Morris USA Inc.
T. Burnette of Jones Day, Atlanta, GA, for respondent R.J.
Reynolds Tobacco Company.
ON MOTIONS FOR REHEARING AND MOTION FOR
grant respondents' motions for rehearing. We further
vacate our order denying petitioner's motion for
clarification and grant that motion. As a result, we are
withdrawing our original opinion and substituting the
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 granting disqualification. See Philip
Morris USA Inc. v. Caro, 207 So.3d 944, 949 (Fla. 4th
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 an
expanded analysis, potentially including application of a
different provision of the Rules Regulating the Florida Bar.
The trial court departed from the essential requirements of
law in finding Caro dispositive, in failing to hold
an evidentiary hearing to make the required findings of fact,
and in failing to rule on the issue of RJR's standing to
join in the motion to disqualify. We thus grant the petition,
quash the trial court's order, and return the case to the
trial court for further proceedings consistent with this
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. 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") from 2005-15. 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.
Petitioner pointed out in her opposition to this motion that
Attorney Lima had terminated his nearly two-year employment
with the Ferraro firm shortly before the motion to disqualify
was heard in this case. She argued that this event
distinguished the facts in this case from those in
Caro. In Caro, this Court concluded that
Attorney Lima's "extensive prior representation of
PM [USA] in defending and strategizing about Engle
progeny cases" while with the Hunton firm was
"substantially related to at least some of the
issues" in Caro's lawsuit against PM USA.
Caro, 207 So.3d at 949. We 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." Id. 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, and the trial court was directed
to grant PM USA's motion for disqualification of the
Ferraro firm. Id. at 950-51.
instant case, Petitioner argued that because Attorney Lima
was no longer associated with the Ferraro firm at the time
the motion to disqualify was heard, 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 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 ...