United States District Court, M.D. Florida, Ocala Division
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,
BOARD OF COUNTY COMMISSIONERS, MARION COUNTY, FLORIDA, Defendant.
R. LAMMENS UNITED STATES MAGISTRATE JUDGE
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
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. Defendant describes this letter
as stating the opposite position that Plaintiffs are now
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).
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.
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
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. ...