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Garcia v. Board of County Commissioners

United States District Court, M.D. Florida, Ocala Division

November 8, 2019

DANIEL D. GARCIA, JOSEPH L. AMIGLIORE, SCOTT H. CHAPPELL, CHRIS COOKSEY, PAMELA DRIGGERS, SCOTT M. GRAGEN, JUSTIN W. HARRINGTON, CHRISTOPHER H. HAYES, TODD HIME, MURREL LIVERMAN, DAVID C. MILLS, JOHN M. NOWERY, THOMAS REEVES, JOSEPH F. RINAUDO, II, MIGUEL RIOSECO, CHRIS TRUBELHORN and PATRICK ASSELIN, individually and on behalf of themselves and all others similarly situated Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS, MARION COUNTY, FLORIDA, Defendant.

          ORDER

          PHILIP R. LAMMENS UNITED STATES MAGISTRATE JUDGE

         In this FLSA case, Plaintiffs allege that the Defendant did not pay them overtime wages for their work as Marion County Fire Rescue Captains. (Doc. 1). Defendant has moved to disqualify Plaintiffs' counsel and the firm of McGillvary Steele Elkin LLP because of a purported conflict of interest. (Doc. 15). For the following reasons, Defendant's motion is denied.

         I. Background

         Defendant seeks to disqualify Plaintiffs' counsel because of an alleged conflict of interest between Plaintiffs' counsel's firm and Defendant's current Fire Chief, James Banta. In 2010, Thomas Woodley, an attorney at Plaintiffs' counsel's firm, drafted a legal opinion letter addressed to Mr. Banta.[1] Defendant describes this letter as stating the opposite position that Plaintiffs are now asserting.

         In response, Plaintiffs describe the circumstances behind the letter in much more detail than Defendant has. Plaintiffs contend that Defendant failed to mention that in 2010 Mr. Banta was not yet the Fire Chief but was a Marion County Fire Rescue Captain, who also served as the Vice President of the labor union, Local 3169 of the International Association of Fire Fighters (IAFF). In 2010, Mr. Woodley was IAFF's General Counsel and addressed the letter to Mr. Banta in his official capacity as an officer of Local 3169. Plaintiffs further assert that “[t]hereafter, Banta relinquished his authority as vice president and later became Fire Chief, evidently absconding with privileged Local 3169 records in the process.” (Doc. 19).

         In Plaintiffs' response, they object to filing the 2010 letter and claim it is privileged material. Plaintiffs filed an affidavit signed by Daniel D. Garcia, the current President of Local 3169. (Doc. 19-1). In his affidavit, Mr. Garcia stated that “[m]embers of Local 3169 who do not hold one of the offices listed in Paragraph 5 do not have authority to waive privilege or reveal confidential information of Local 3169.” The offices listed in paragraph 5 include: “one President, two Vice Presidents, one Secretary, one Treasurer, one Public Relations Coordinator, and eight Executive Board Members.” And Mr. Garcia asserts that “Local 3169 has never authorized the disclosure of the 2010 letter. . . [and] has never waived privilege. The letter is a confidential, attorney-client communication between Local 3169 and an attorney.” Notably, Defendant has not offered anything to contradict Mr. Garcia's affidavit or Plaintiffs' characterization of the letter as privileged.

         II. Legal Standards

         Although a party is presumptively entitled to the counsel of his choice, that right may be overridden if “compelling reasons” exist. In re BellSouth Corp., 344 F.3d 941, 961 (11th Cir. 2003). The party moving to disqualify bears the burden of proving the grounds for disqualification. Id. Under Local Rule 2.04(d), MD Fla., the Model Rules of Profession Conduct of the American Bar Association, as modified and adopted by the Supreme Court of Florida to govern the behavior of the members of The Florida Bar, governs the professional conduct of all members of the bar of this Court. Rule 4-1.9 of the Rules Regulating the Florida Bar governs conflicts arising from the prior representation of a client:

A lawyer who has formerly represented a client in a matter must not afterwards:
(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.

         A person seeking the disqualification of an attorney under Rule 4-1.9 must prove (1) the existence of a prior attorney-client relationship, and (2) that the matters in the current suit are substantially related to the previous matter or cause of action. See Shivers v. ...


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