Category Archives: Lawyer disqualification

Florida 3rd District Court of Appeal affirms that lawyer’s receipt and “skimming” of confidential mediation statement does not require disqualification

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Third District Court of Appeal in which it held that a lawyer’s receipt and “skimming” of confidential mediation statement of the opposing party does not require the disqualification of the party’s lawyer.  The opinion is Maribor v. Dreiling, Fla. Dist. Ct. App. 3d Dist., No. 3D12-300 (8/22/12) and is attached.

During extensive litigation between siblings over their mother’s estate, the plaintiff’s lawyer asked an assistant to serve a summary judgment motion by e-mailing a copy to defendants’ lawyers at the Heller Waldman law firm and mailing a hard copy.  After e-mailing the motion, the assistant realized that the e-mail did not mention that a copy would also be mailed and she sent a follow-up e-mail noting that she had sent a hard copy.  The assistant inadvertently attached a confidential mediation statement to the e-mail instead of the summary judgment motion.  The e-mails were sent to two Heller Waldman partners, Glen Waldman and Eleanor Barnett, and their assistant.  Waldman and the assistant never reviewed the statement.

According to the opinion, Barnett was out of the office when she received the e-mails on her mobile telephone and did not open them.  When she returned to the office, she instructed her assistant to print out the summary judgment motion and “whatever came in while I was out related to this cause.”  The assistant printed out a copy of the motion and the mediation statement, and forwarded the e-mails and their attachments to the clients.

The lawyer read the summary judgment motion and began to “skim” the mediation statement after checking to confirm that it did not contain a prominent confidentiality notice and assumed it was sent intentionally.  Later the same day, the lawyer sent opposing counsel an e-mail about a scheduling issue mentioned in the mediation statement.  After receiving the e-mail, the opposing lawyer realized the inadvertent disclosure and requested that all copies of the mediation statement be destroyed and the lawyer immediately complied.

The opposing party then moved to disqualify, claiming that the receiving lawyers violated Rule 4-4.4(b), Rules Regulating The Florida Bar, which states that “(a) lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”  The trial court appointed a special master, who found that the confidential mediation statement was essentially a position paper stating obvious and well-established positions of each side in the litigation.

According to the special master’s report, the mediation statement outlined uncontested facts, “(made) passing comments on the obvious motivations of the parties”, and tracked the legal issues without revealing any weakness in the plaintiff’s case or providing any information that would give the defendants a tactical, strategic, or legal advantage.  The trial court issued an order adopting the special master’s recommendation and denied the motion to disqualify.  The opposing party appealed and the opinion affirmed the trial court’s order refusing to disqualify the lawyer or firm.

In affirming, the opinion pointed to the lawyer’s assertion that she did not realize the statement was confidential before skimming it and the fact that she had all copies destroyed immediately after she learned that it had been sent in error.  In addition, affidavits in the record documented the minimal review of the statement and eliminated any possibility that the lawyer or the firm obtained an unfair informational advantage in the case.  According to the opinion, “the events that transpired in this case are not attributable to unethical conduct…(but) illustrate some of the adverse consequences resulting from the injection of technology into today’s modern and busy law practice.”  (emphasis added).

The opinion also cited Florida case law and provided the following elements for review in determining whether a lawyer should be disqualified based on inadvertent disclosure of confidential information:

The receipt of an inadvertent disclosure warrants disqualification when the movant establishes that: (1) the inadvertently disclosed information is protected, either by privilege or confidentiality; and (2) there is a “possibility” that the receiving party has obtained an “unfair” “informational advantage” as a result of the inadvertent disclosure.

The opinion stated that the above two elements must be considered together since only an inadvertent disclosure of privileged or confidential information can yield an “unfair” informational advantage and the fact that inadvertently disclosed information is privileged or confidential, standing alone, does not automatically require disqualification.  The second element is also broader than the first and, in determining whether to disqualify a lawyer, courts should look not only to the content of the inadvertent disclosure, but also to the actions the receiving lawyers took upon receiving the inadvertent disclosure.

The opinion listed two reasons why courts should focus on the actions of the receiving lawyer/law firm:

First, it would be impossible to evaluate the possibility of an unfair advantage without knowing how and to what extent the lawyers reviewed, copied, or disseminated the inadvertently disclosed information.  The opinion noted that, in Atlas Air v. Greenberg Traurig P.A., 997 So. 2d 1117 (Fla. 3rd DCA 2008), the lawyer asserted attorney-client privilege and work product protection when asked during deposition whether privileged materials were provided to other attorneys in the firm and the lawyer’s refusal to answer made it impossible to determine the extent of the tactical advantage that the lawyer/law firm may have gained.

Second, the actions of the receiving lawyers may assist in determining whether any informational advantage was received “unfairly,” as in Abamar Housing & Dev. Inc. v. Lisa Daly Lady Decor Inc., 724 So. 2d 572 (Fla. 3rd DCA 1998).  The Abamar opinion focused on the receiving lawyer’s failure to take steps to mitigate the inadvertent disclosure and found that a lawyer who complies with the Rules of Professional Conduct upon receiving an inadvertent disclosure will not be subject to disqualification.

After conducting the above analysis, the opinion agreed with the special master that nothing within the mediation statement created a possibility that the defendants gained an informational advantage and that the brief and cursory nature of the receiving lawyers’ exposure to the statement and the minimal way in which they handled, reviewed, and disseminated it, showed there was no possibility that the firm gained an unfair informational advantage.  The opinion also found that the trial court correctly rejected the plaintiff’s argument that the lawyers violated Florida Bar Rule 4-4.4(b) since the record supported the findings that the receiving lawyer did not know that the mediation statement was confidential and that this lack of knowledge was reasonable under the circumstances.

With regard to the mediation statement, the opinion stated that nothing in a mediation statement automatically alerts a person that it is confidential since  it is not uncommon for a party to send a mediation statement to opposing counsel and trial judges sometimes require it to be sent.  The opinion also stated that the mediation statement did not prominently indicate that it was confidential.  Although the first paragraph contained statement about the confidentiality of the statement, the receiving lawyer stated that she did not read that portion and, “(b)ecause the admonition was not placed in bold, underlined, italicized, capitalized, or otherwise designed to stand out to a reader who was merely skimming the document, it was reasonable for the trial court to conclude that (the lawyer) overlooked the admonition.”  Finally, the opinion noted that the lawyers mitigated the inadvertent disclosure since the receiving lawyer immediately had all copies of the mediation statement destroyed when she was notified that it was confidential.

Bottom line:  As the opinion said, “the events that transpired in this case are not attributable to unethical conduct… (but) illustrate some of the adverse consequences resulting from the injection of technology into today’s modern and busy law practice.”  Lawyers (and their assistants) must be extremely careful when sending documents as attachments to e-mails, particularly to opposing counsel!  Of course, the receiving lawyer should be very wary as well since there are certainly cases wherein a lawyer who inadvertently received and reviewed a confidential and/or privileged document or information was disqualified…or worse.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax (727) 799-1670































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Filed under Attorney discipline, Attorney Ethics, Attorney/client privilege and confidentiality, Disqualification, Florida Lawyer Ethics and Professionalism, Inadvertent disclosure of Confidential Documents, joe corsmeier, Lawyer discipline, Lawyer disqualification, Lawyer ethics, Lawyer Ethics and Professionalism

Florida law firm is removed from federal case after lawyer scheduled depositions at Dunkin’ Donuts, engaged in “deplorable behavior”, and disparaged opposing counsel

Hello and welcome to this Ethics Alert blog which will discuss the recent lengthy Order of a federal District Judge which disqualified a Florida lawyer and his law firm from a fair labor standards litigation partially because of his “flagrant disrespect” and misconduct in the case and a prior case with the same corporate defendant and opposing counsel.  The case is Bedoya et al. v. Aventura Limousine & Transportation Service, Inc., et al., Case No. 11-24432-Civ-Altonaga/Simonton.  The Order is also attached.

The lawyer and law firm (Richard Celler and Morgan & Morgan), sued a limousine service and corporate officers in two separate cases.  According to the U.S. District Judge’s Order, the lawyer made “choice statements” in an e-mail to opposing counsel, engaged in improper communications with the opposing party, and disparaged the opposing lawyer in the presence of his clients.  The lawyer also engaged in “deplorable behavior”, including scheduling depositions at Dunkin’ Donuts, attending the deposition in T-shirts and shorts, and drawing penis pictures and playing Angry Birds during the deposition.

According to the Order, although some of the lawyer’s misconduct occurred in a prior case, it was relevant because it embarrassed the defendants and interfered with their relationship with their lawyer.  The Order also found that the lawyer acted with “flagrant disrespect” for the opposing lawyer and engaged in a consistent course of unprofessional conduct, which included telling a defendant, who was an officer of the limousine company, that the company could afford a better lawyer and that he would never settle with the opposing lawyer.

The lawyer argued that he merely advised the defendant to hire outside counsel who specialized in labor issues and, in any event, the communication was not an improper communication with a represented person because the other lawyer was nearby.  The Order rejected this argument and referred an e-mail written by the lawyer to the opposing wherein wherein he apparently confirmed the conversation with the opposing party regarding his refusal to settle and criticized the e-mail for its “utter lack of professionalism”.  The e-mail stated, in part:

“It is apparent that your MO is trying to purposefully delay things as much as possible. This is because it appears (from what I observed at trial), you are not a trial lawyer.  If you want to play in the sand box with trial lawyers, you are going to do it the right way or we are going to call you out to the judge—every time. …. We are not interested, nor are our clients, in settlement discussions with you as long as you are the lawyer on the other side. You are causing your client a great disservice. If you were not on the other side of the table, we would have a better chance of any resolution and would sit with the principals of the company. I have told Scott Tinkler this. Time to put your boots on and get to work. No more whining, no more complaining about how you have no support staff, no more complaining about how much work you have to do.  Nobody on this side of the Internet cares.”

The Order found that the lawyer engaged in multiple instances of misconduct and violated multiple Bar Rules and disqualified both the lawyer and the law firm.  The Order stated, “(i)n so finding, the Court is influenced by the egregiousness of the Florida Bar Rule violations, and the grave impact of (the lawyer’s) disparaging acts have had on the attorney-client relationship between (the opposing lawyer) and Defendants.”

Bottom line:  Is this lawyer now asking (himself) “did I actually write, say, and do this and what in the world was I thinking (or not thinking)”?  Needless to say, I would recommend that lawyers refrain from doing this.

Be careful out there.


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