8 Fla. L. Weekly Supp. 861c
Attorneys — Disqualification — Conflict of interest — Insurance — Attorney who previously represented insurer is not disqualified from representing plaintiffs in personal injury protection claims against insurer where there is no specific transaction in which attorney represented insurer and in which attorney is now attempting to represent a plaintiff, and there is no showing by insurer of substantial relationship between the PIP cases it must defend and matters or causes of action wherein attorney previously represented the insurer
MEDICAL EVALUATION CENTERS, INC. (As assignee of Jason Behuniak), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 2000-19777-CC/J, Division J. May 9, 2001. Gaston J. Fernandez, Judge. Counsel: Hans Kennon, Morgan, Colling & Gilbert, PA, Orlando, for Plaintiff. David B. Kampf, Ramey, Ramey, & Kampf, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TODISQUALIFY HANS KENNON AND THE LAW FIRM OFMORGAN, COLLING & GILBERT, P.A.
THIS MATTER having come before the Court on Defendant’s Motion to Disqualify Hans Kennon and the Law Firm of Morgan, Colling & Gilbert, P.A. on the 14th day of March, 2001, and the Court having considered testimony, arguments of counsel, supporting memoranda, and being otherwise fully advised in the premises, hereby finds and rules as follows:
Defendant seeks to disqualify Hans Kennon and the Law Firm of Morgan, Colling & Gilbert, P.A. based on Florida Bar Rules 4-1.9(a) and 4-1.0(b). Specifically, Mr. Kennon, who presently represents the Plaintiff in this Personal Injury Protection claim against the Defendant insurance company, had been previously employed by an insurance defense firm at which time he participated in the representation of the Defendant insurance company on many occasions.
This Court finds that, even though Mr. Kennon previously handled PIP cases for State Farm, he is not precluded from now representing Plaintiff in a factually unique claim brought under Sec. 627.736, Florida Statutes.
The Comment to Rule 4-1.9 states the following:
The scope of a “matter” for purposes of rule 4-1.9(a) may depend on the facts of a particular situation or transaction….When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client….Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
Further, before a client’s former attorney will be disqualified from representing a party whose interests are adverse to the former client’s, the former client must show that matters embraced in the pending suits are substantially related to the matters or cause of action wherein the attorney previously represented the former client. Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979).
First, this Court notes that there is no one specific transaction in which Mr. Kennon represented State Farm and is now attempting to represent Plaintiff in that specific transaction. Further, Defendant has failed to meet its burden of showing a substantial relationship between the PIP cases it must defend. Specifically, the Personal Injury Protection cases brought against State Farm are all unique in that they involve different insureds, different injuries, different accidents, and different doctors. The only similarity that exists between the cases are that they were all brought under the State Farm insurance contract. It is therefore
ORDERED AND ADJUDGED that Defendant’s Motion to Disqualify Hans Kennon and the Law Firm of Morgan, Colling & Gilbert, P.A. is hereby DENIED.
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