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December 9, 2016 by admin

Attorneys — Disqualification — Certiorari — Defendant is not entitled to writ of certiorari to quash non-final order disqualifying defendant’s counsel on basis of conflict of interest

41
Fla. L. Weekly D2680a
op of Form

Attorneys
— Disqualification — Certiorari — Defendant is not entitled to writ of
certiorari to quash non-final order disqualifying defendant’s counsel on basis
of conflict of interest where order of disqualification does not constitute the
type of essential illegality and gross miscarriage of justice which is focus of
certiorari

DAVID
CHESSLER, et al., Petitioners, v. ALL AMERICAN SEMICONDUCTOR, INC., etc.,
Respondent. 3rd District. Case No. 3D16-2244. L.T. Case No. 05-13983. November
30, 2016. On Petition for Writ of Certiorari to the Circuit Court for
Miami-Dade County, Bronwyn C. Miller, Judge. Counsel: McIntyre, Thanasides,
Bringgold, Elliott, Grimaldi & Guito, P.A., and Jennifer E. Jones, Richard
J. McIntyre, and Johnny Hightower (Tampa), for petitioners. Broad and Cassel,
and Barbara Viota-Sawisch, Adam G. Rabinowitz, and Joseph H. Picone (Fort Lauderdale),
for respondent.

(Before
SUAREZ, C.J., and ROTHENBERG and LOGUE, JJ.)

(LOGUE,
J.) The Defendants below, David Chessler and several companies he either owns
or controls, filed a petition for writ of certiorari to quash a non-final order
disqualifying their counsel, Richard J. McIntyre, and his law firm based on a
conflict of interest. We deny the petition for writ of certiorari because the
Defendants failed to meet the high standard for certiorari review.

In
the underlying lawsuit, All American Semiconductor, Inc., as the assignee of
the claims of ParView, Inc., sued Chessler and his numerous business entities.
All American alleges, among other claims, that Chessler perpetrated fraudulent
transfers, conversion, breaches of contract, and breaches of fiduciary duty as
the former CEO of ParView.

Chessler
was the past president and had sole control over the management and operations
of ParView, a company that manufactured, developed, and leased GPS systems for
golf courses. ParView became indebted to All American Semiconductor, Inc., a
company that provided computer hardware for ParView’s GPS systems. ParView
secured its debt to All American by entering into a series of agreements in
which All American was granted a first priority security interest in ParView’s
assets. All American now alleges in the underlying suit that at the time
ParView and All American entered into these security agreements, Chessler
improperly transferred Parview’s assets to himself, his entities, and third
parties, to ParView’s detriment.

Richard
J. McIntyre, the attorney whose disqualification is at issue here, was the
long-term attorney for ParView. He represented ParView in an earlier bankruptcy
proceeding in which similar legal claims relating to Chessler’s potential
misconduct were raised. Despite McIntyre’s former representation of ParView,
Chessler hired McIntyre to defend him in this matter. All American filed an
emergency motion to disqualify McIntyre as counsel based on a conflict of
interest.

Chessler
maintains McIntyre’s former representation of ParView never involved McIntyre
in the pursuit of ParView’s claims against him. But after an evidentiary
hearing, the trial court found otherwise. It noted in a detailed eleven-page
order that (1) McIntyre was hired “to take any actions necessary to recover any
voidable transfers”; (2) McIntyre continued to represent ParView after a
bankruptcy examiner filed a report identifying ParView’s potential claims
against Chessler for wrongful transfers; and (3) in billing records submitted
to the bankruptcy judge, McIntyre described the work he undertook for ParView
as including “work on fraudulent transfer issues” and “attendance at the
deposition of Chessler.” The trial court also noted that McIntyre was likely
privy to information he obtained while representing ParView regarding ParView’s
alleged payments to Chessler — an issue now in dispute in the underlying
lawsuit.

The
trial court granted All American’s motion for disqualification, concluding in
its written order that

[a] conflict of interest
exists because McIntyre represented ParView in the underlying bankruptcy
creating an irrefutable presumption that client confidences were disclosed to
McIntyre during the course of his representation of ParView, and, as such,
confidences could be used to the detriment of [All American], as Parview’s
assignee. This would result in an impermissible, unfair informational and
tactical advantage for the Defendants. McIntyre’s representation of Chessler
and his related entities would also create an appearance of impropriety, which
requires disqualification.

We
conclude that the facts of this case do not meet the high standard for issuance
of a petition for writ of certiorari of a non-final order. “To support a writ
of certiorari, the petitioner must demonstrate that the challenged non-final
order (1) departs from the essential requirements of law, (2) results in
material injury for the remainder of the case, and (3) such injury is incapable
of correction on postjudgment appeal.” Sea Coast Fire, Inc. v. Triangle Fire,
Inc.
, 170 So. 3d 804, 807 (Fla. 3d DCA 2014). These last two factors are
often referred to as “irreparable harm.” Id.

The
traditional manner of stating the test for certiorari of a non-final order is
somewhat misleading because it places the substantive issue before the
jurisdictional issue. As Judge Altenbernd recognized in an insightful review of
the history of the writ, “a petitioner must establish that an interlocutory
order creates material harm irreparable by postjudgment appeal before this court
has power to determine whether the order departs from the essential
requirements of the law.” Parkway Bank v. Fort Myers Armature Works, Inc.,
658 So. 2d 646, 649 (Fla. 2d DCA 1995). For this reason, the test is best
stated simply as: “there are two indispensable ingredients to common law
certiorari when sought to review pretrial orders of the circuit courts: (1)
irreparable injury to the petitioner that cannot be corrected on final appeal
(2) caused by a departure from the essential requirements of law.” Bared
& Co. v. McGuire
, 670 So. 2d 153, 156 (Fla. 4th DCA 1996) (en banc).

Here,
without doubt, the order of disqualification at issue reflects a potential
irreparable injury “because denying a party counsel of his or her choice is a
material injury without appellate remedy.” Event Firm, LLC v. Augustin,
985 So. 2d 1174, 1175 (Fla. 3d DCA 2008). We therefore have jurisdiction and
turn to consider whether the order departs from the essential requirements of
law.

To
disqualify opposing counsel the movant must demonstrate that (1) “an
attorney-client relationship existed,” which “giv[es] rise to an irrefutable
presumption” that confidential information was disclosed during the
relationship; and (2) “the matter in which the law firm subsequently
represented the interest adverse to the former client was the same or
substantially related to the matter in which it represented the former client.”
State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633 (Fla.
1991); see also R. Regulating Fla. Bar 4-1.9 (governing conflicts of
interest). In a certiorari proceeding, moreover, “[t]he required ‘departure
from the essential requirements of law’ means something far beyond legal error.
It means an inherent illegality or irregularity, an abuse of judicial power, an
act of judicial tyranny perpetrated with disregard of procedural requirements,
resulting in a gross miscarriage of justice.” Jones v. State, 477 So. 2d
566, 569 (Fla. 1985) (Boyd, C.J., concurring specially). Given the findings of
the trial court after the evidentiary hearing, the order of disqualification
does not constitute the type of essential illegality and gross miscarriage of
justice which is the focus of certiorari.

Certiorari
denied.

* *
*

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