TRIAL COURT DID NOT DEPART FROM ESSENTIAL REQUIREMENTS OF LAW IN DISQUALIFYING LAW FIRM REPRESENTING PLAINTIFF, WHERE AN ATTORNEY IN THAT FIRM HAD PREVIOUSLY REPRESENTED THE DEFENDANT TOBACCO COMPANY WHILE WORKING FOR A DIFFERENT FIRM–EVEN THE TERMINATION OF THAT ATTORNEY IN THIS CASE DID NOT CURE THE CONFLICT IN THIS CASE.

Russ v. Philip Morris, 43 Fla. L. Weekly D2042 (Fla. 1st DCA September 5, 2018):

An attorney working for the plaintiff’s law firm had previously worked for a firm representing Philip Morris. Having been disqualified on another case, plaintiff’s law firm then fired the attorney.

Philip Morris argued that the firing was too little, too late. The court observed that the issue of the firm’s disqualification was a complicated one, and did not turn on clearly-established legal principles.

The court also observed that the law at one time had allowed formerly conflicted law firms to represent new clients after the conflicted attorney left the firm. However, it likened the un-imputing of a conflict to the un-ringing of a bell, un-scrambling of an omelet and/or pushing toothpaste back in the tube.

In this case, because there were no clearly-established principles of law governing, the First District denied plaintiff’s petition, which sought to challenge the trial judge’s disqualification of her lawyers.

The court compared its ruling to the Fourth District’s decision in Baleban v. Philip Morris, where the Fourth District held that once the disqualified attorney left the firm, the Rules of Professional Conduct did allow the formerly conflicted law firm to continue with its representation in some circumstances (that case was remanded for an evidentiary hearing).

The court further observed that the cases illustrate that there is not yet any clearly-established principle of law that would have compelled the trial court to deny the disqualification motion, which made certiorari relief unavailable.