Opinion
CASE NO. 19-24047-CIV-COOKE/GOODMAN
2020-12-14
Yolaisy PEREZ, Plaintiff, v. CITY OF HIALEAH, et al., Defendants.
Richard John Diaz, Roberto Pertierra, Coral Gables, FL, Domingo Carlos Rodriguez, Rodriguez Law Office, LLC, Miami, FL, for Plaintiff. DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendant City of Hialeah. Christine L. Welstead, Bowman and Brooke LLP, Stephanie Martinez, Seipp & Flick, LLP, Miami, FL, DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendant Lieutenant Antonio Luis. Robert L. Switkes, Bradley Francis Zappala, Switkes & Zappala, P.A., Miami Beach, FL, DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendants Officer Jose Abel, Officer Teannie Hernandez, Officer James Burke, Officer Jose Pico. Maryjeanne Marrero, Robert L. Switkes, Bradley Francis Zappala, Switkes & Zappala, P.A., Miami Beach, FL, DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendants Officer Felix Elias, Officer Daniel Garcia, Officer Daniel Gato, Officer Esteban Holland, Officer Adrian Vidal, Officer Lorenzo Rodriguez.
Richard John Diaz, Roberto Pertierra, Coral Gables, FL, Domingo Carlos Rodriguez, Rodriguez Law Office, LLC, Miami, FL, for Plaintiff.
DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendant City of Hialeah.
Christine L. Welstead, Bowman and Brooke LLP, Stephanie Martinez, Seipp & Flick, LLP, Miami, FL, DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendant Lieutenant Antonio Luis.
Robert L. Switkes, Bradley Francis Zappala, Switkes & Zappala, P.A., Miami Beach, FL, DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendants Officer Jose Abel, Officer Teannie Hernandez, Officer James Burke, Officer Jose Pico.
Maryjeanne Marrero, Robert L. Switkes, Bradley Francis Zappala, Switkes & Zappala, P.A., Miami Beach, FL, DeVang B. Desai, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Defendants Officer Felix Elias, Officer Daniel Garcia, Officer Daniel Gato, Officer Esteban Holland, Officer Adrian Vidal, Officer Lorenzo Rodriguez.
ORDER ON MOTION TO DISQUALIFY PLAINTIFF'S NEW CO-COUNSEL
Jonathan Goodman, UNITED STATES MAGISTRATE JUDGE
Richard J. Diaz is a former Miami-Dade police officer who has been practicing criminal defense and civil trial law for 32 years. Until a few weeks ago, he represented City of Hialeah Police Chief Sergio Velazquez in an ethics investigation and on personal and family matters. Before filing a notice of appearance as co-counsel for Plaintiff in this case on August 28, 2020, Diaz asked Velazquez if he objected to Diaz becoming involved in this lawsuit against the City and the nine police officer defendants (a lieutenant and eight officers). Velazquez advised Diaz that he did not object. At that point, Diaz asked the Chief if the mayor would object. Velazquez told Diaz he would phone him back in a few minutes. He did (presumably after speaking with the mayor) and told Diaz to "go for it." [ECF No. 112, pp. 34-35].
Diaz went for it by filing the notice of appearance in this civil rights lawsuit involving the death of 24-year-old Lester Jesus Machado, who (according to the Complaint [ECF No. 1]) died after a high-speed police chase, a collision of his car into a Metrorail support column, and the officer discharge of approximately 128 rounds of bullets which struck Machado's car more than 80 times.
Neither the City nor the other Defendants gave notice of any objection to Diaz's involvement as co-counsel. But on November 2, 2020, Diaz advised all counsel of his intent to take the deposition of Officer Teannie Hernandez, a named Defendant. This, Defendants say, is when they became aware "of an inescapable conflict of interest involving Attorney Diaz requiring his disqualification as counsel for Plaintiff." [ECF No. 90, p. 2].
After a discovery hearing in which the Undersigned authorized a limited-purpose deposition of Velazquez on issues surrounding the purported conflict, and after Velazquez gave a deposition, all individual defendant officers filed a motion to disqualify Diaz. [ECF No. 90]. The City filed a joinder notice, Plaintiff responded, and Defendants filed a reply. [ECF Nos. 91; 100; 103]. The Undersigned then held a three-hour hearing on the motion. [ECF No. 105].
For reasons outlined below, the Undersigned denies the motion but provides significant relief designed to ameliorate Defendants’ stated concerns. At bottom, however, the denial is because Velazquez is not a named defendant, the movants are not former Diaz clients, and the lawsuit is not "the same or a substantially related matter" to the matters on which Diaz represented Velazquez.
However, Velazquez now contends that there is a conflict of interest because he spoke in general with Diaz about current events and police shootings (but not this one). In addition, Defendants say that Velazquez's prior consent to Diaz's involvement was not an informed consent because Diaz did not explain to him that the lawsuit involved issues about the customs and practices of the Police Department and that Velazquez is, in effect, the face of the City's police department.
Therefore, in order to balance the Plaintiff's presumptive right to counsel of her choice with Defendants’ concerns, the Undersigned is preventing Diaz from questioning Velazquez (both at a merits-focused deposition and at trial), is precluding Diaz from being in the room or in court when Velazquez testifies, and is providing other, related relief.
The Plaintiff is Yolaisy Perez, who the Complaint describes as "the presumptive Personal Representative of the Estate of Lester Jesus Machado." [ECF No. 1, p. 2]. The Complaint alleges that Machado was Perez's son.
I. Factual Background
A. The Complaint
The Complaint contains extensive allegations about the Hialeah Police Department's purported "pattern and practice regarding excessive use of force." [ECF No. 1, p. 4]. In fact, Plaintiff uses those very words in a sub-heading in her Complaint. The pattern and practice allegations take up approximately nine pages of the Complaint.
The Complaint, as filed, asserts four counts. Count I is a civil rights claim against the City under 42 U.S.C. § 1983 ; Count II is a Section 1983 claim against the officers; Count III is a wrongful death claim against the City under Florida's Wrongful Death Act; and Count IV is a wrongful death claim against the individual officers.
Plaintiff filed a notice of voluntary dismissal against Officer Maria Benitez and the Court dismissed without prejudice the Complaint against her. [ECF Nos. 61; 62].
B. The Rulings on the Motions to Dismiss
In response to motions to dismiss, the Court dismissed without prejudice Count III against the City (for wrongful death) and Count IV against Lt. Luis (also for wrongful death). [ECF Nos. 76; 77].
After these rulings, the so-called " Monnell [Monell ]" claim against the City remained. A " Monnell [Monell ]" claim is a civil rights claim based on Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and is against a local government under Section 1983 pursuant to a policy or custom.
Although the Monell allegations of custom and practice are typically made in relation to civil rights claims against a local government like the City, the Complaint here also mentions a city policy in the allegations against Lt. Luis. Specifically, paragraph 69 alleges: "Furthermore, during the chase, a Hialeah Sergeant ordered the chase to be discontinued. However, Luis, a Lieutenant in the Department, wrongfully countermanded that Sergeant's order to stop the chase, which was also a violation of a clearly established policy of the Department." [ECF No. 1, pp. 22-23].
C. Allegations in the Motion to Disqualify
Filed on November 11, 2020, the motion alleges that Diaz represented Velazquez "in matters pertaining to his position as Chief of the City of Hialeah Police Department and providing general counsel to the Chief on other issues as his personal attorney." [ECF No. 90, p. 2]. It further alleged that the attorney-client relationship between Diaz and Velazquez pre-existed this lawsuit "until at least last week when Attorney Diaz purportedly terminated Chief Velazquez as a client upon learning of Defendant Officers’ objection to his representation of Plaintiff in this case." Id.
More specifically, the motion alleges that Diaz's representation of Velazquez "includes serving as counsel of record for Chief Velazquez in an ongoing ethics matter involving actions taken by Chief Velazquez while serving in his capacity as Chief of Hialeah Police Department." Id.
In her opposition response, however, Plaintiff contends that the "ongoing ethics matter" on which Diaz represented Velazquez did not involve "qua his actions as Chief of Police, but rather the reporting of Velazquez's off-duty activity." [ECF No. 100, p. 3, n. 3]
The motion contends that Diaz has represented "the policy maker" for the City's police department "by virtue of his prior representation" of Velazquez "in his capacity as the City of Hialeah Chief of Police." Id. at p. 3.
Focusing on this specific lawsuit, the motion contends that Velazquez "has extensive knowledge regarding the incident which resulted in the Plaintiff's decedent's death and regarding the Defendants in this lawsuit." Id.
The motion argues that Velazquez "had the ability to divulge sensitive/confidential information to Attorney Diaz regarding this incident and internal investigation/handling by the City of Hialeah Police Department." Id. Similarly, the motion further alleges that Diaz, the Chief, and the City Attorney "previously engaged in multiple discussions regarding the claims set forth in this case" during the time Diaz represented Velazquez but before Diaz filed his notice of appearance. Id.
The motion alleges that Diaz, in approximately March 2020, "engaged in substantive communications with representatives for the City of Hialeah regarding the claims in this lawsuit." Id. at p. 4. And Defendants further claim that Diaz represented to the City representatives that he was "attempting to facilitate an amicable resolution of Plaintiff's claims by acting as a neutral mediator, based upon his relationships with both Chief Velazquez and the attorneys for Plaintiff in this matter." Id.
Defendants’ disqualification motion also explained that Velazquez's role as a witness in the case is "likely." Id.
D. Diaz: Background (Generally)
After leaving law enforcement, Diaz represented many law enforcement officers and politicians in a variety of matters. He has been referral counsel for the Dade County Police Benevolent Association for more than 20 years. He was one of several defense attorneys who successfully defended former Hialeah mayors Raul Martinez and Julio Robaina. In his more-than 30 years of practice, Diaz has represented some Hialeah police officers.
Diaz has litigated forfeiture cases against municipalities like the City of Opa Locka and the Village of Pinecrest. Significantly, however, Diaz has never represented the City of Hialeah (the "City"). Indeed, in several instances, Diaz has sued the City or been in a lawsuit against the City.
E. Velazquez's Deposition
Velazquez's Zoom deposition was taken on November 21, 2020, and lasted approximately an hour and a half. [ECF No. 100-1]. One of the attorneys representing the City (which joined the motion to disqualify Diaz [ECF No. 91]) represented him at the deposition. That attorney also (with his law partner) helped to prepare Velazquez for the deposition in which he (a lay person) opined that there is a conflict of interest. [ECF No. 100-1, p. 6].
i. Deposition Excerpts Highlighted by Plaintiff
In response to the motion, Plaintiff points out that contrary to the allegations in the motion, Velazquez denied having discussions about the claims in this lawsuit with Diaz and the City Attorney. [ECF No. 100, pp. 17-18].
Diaz and Velazquez are and have long been friendly; in the course of their friendship, they regularly have discussed various current events. At his deposition, Velasquez testified that he met Diaz approximately five years ago and developed a "professional[,] cordial relationship" with Diaz. [ECF No. 100-1 at 9:19-23, 12:25]. Diaz represented Velazquez and his wife in a personal, non-professional matter, from roughly 2014 or 2015 through 2016 or 2017. Id. at 13:16-18, 16:17-20, 41:18-42:10, 43:2-10. Diaz counselled Velazquez on personal legal matters. Id. at 16:22-17:3. Diaz also represented Velazquez in an ethics matter. Id. at 17:6-8, 42:21-43:1.
Diaz and Velazquez would meet occasionally and discuss matters of public concern. Id. at 15:20-16:15. Velazquez testified about his meetings with Diaz: "When I met with him, it was more on a personal level discussing different topics and so on and so forth." Id. at 13:24-14:1. The relationship between the two was "much, much greater" than a mere professional representation. Id. at 14:5-6. Velazquez considers Diaz to be a friend. Id. at 16:12-13. Velazquez and Diaz would engage in general discussion of current law-enforcement events. Id. at 22:4-21.
Velazquez never divulged to Diaz his mental impressions about the shooting forming the basis of this action, or even any Hialeah police shooting. Id. at 53:16-54:13.
As the global Coronavirus pandemic progressed, certain matters in Diaz's case load were delayed. Diaz thus became available to participate in this litigation. Diaz called Velazquez and asked him if he had any objection to Diaz joining the Perez legal team. Velazquez responded that he had no concerns. Id. at 18:18-24, 20:14-21:7, 21:11-19. Velazquez confirmed at his deposition that he had advised Diaz that he had no problem with Diaz joining. "I said no, Rick, I have no problem with you being a part of the case." Id. at 21:17-18.
ii. Deposition Excerpts Highlighted by Defendants
In their reply in support of their motion [ECF No. 103], Defendants note that during the continuous period from at least 2015 through November 3, 2020, when Diaz terminated Velazquez as a client, the Chief considered Diaz to be his lawyer [ECF No. 100-1, at 43:17-20].
Velazquez has been Hialeah Police chief since April 1, 2012.
In Velazquez's words, "I consider Mr. Rick Diaz – a friend, somebody I would trust, someone I would confide in. You know, if – and our meetings covered an array of things." Id. at 16:11-15.
Diaz and Velazquez once "briefly " discussed this case, back in 2017, shortly after it occurred." Id. at 22:4-6.
Defendant's reply memorandum omitted the word "briefly" in its summary of the deposition. In addition, it also omitted a particularly significant piece of testimony appearing a few lines later: "At no point in 2017 or anytime forward have I discussed anything confidential about the case with Mr. Diaz, nor has he asked me any questions about the case." [ECF No. 100-1, at 22:11-14]. Similarly, Defendants’ reply memorandum also omitted the next part of Velazquez's testimony: "The case was ... brought up in the same conversation we had in 2017 as a general topic of what's going on in my department and what's going on in law enforcement, but not anything that – he has never asked me any questions on the case." Id. at 24:21-25:4 (emphasis added). Defendant's seemingly strategic omissions cause a reader to have an unfairly altered understanding of the context.
In the course of these conversations with Diaz, Velazquez provided his opinions on the cases in an unguarded manner while looking to Diaz as his friend and counsel, specifically offering his own personal views as well as his views as Chief of Police to Diaz about how he feels and thinks about these issues. Id. at 37:8-18, 46:19-47:3.
Velazquez testified that he would never divulge his mental impressions about similar police shootings and excessive force cases with an attorney who was suing his Department and the City of Hialeah. Id. at 53:16-20.
In asking for his permission to become involved in this lawsuit on Plaintiff's behalf, Diaz further told Velazquez that "this lawsuit is not personally suing you, it's the City and the other officers." Id. at 21:8-10.
When Velazquez advised Diaz that he did not have a problem with Diaz representing the Plaintiff, he was unaware of the implications of the federal civil rights case alleging Monell claims against the City. Id. at 40:21-41:10.
Now that Velazquez is aware of the Monell claim, he believes Diaz's involvement creates a conflict of interest because he is "the creator of the policies for [the police] department." Id. at 40:21-41:10. Based on the additional information, Velazquez no longer consents to Diaz's involvement as co-counsel for Plaintiff. Id. at 31:12-33:3, 43:21-44-6.
Velazquez is not an attorney and the Undersigned does not place much stock in his lay opinion, especially when he testified that he never discussed confidential matters about City police business or this lawsuit with Diaz. Also, Velazquez testified in his deposition that he was sorry for changing his mind and did not pinpoint any relevant specific police custom or practice which he initiated, changed, followed, or advocated. Similarly, he did not claim to have ever discussed with Diaz any City of Hialeah Police Department practice, custom, or procedure relevant to car chases, drawing weapons, or firing weapons after a suspect crashed his car during a chase.
F. The Parties’ Contentions
Defendants contend that Diaz and Velazquez have engaged in many unguarded discussions during their attorney-client relationship. They say that the Diaz-Velazquez discussions of "current law enforcement events" would necessarily include questions of excessive force, including police shootings and police chases. [ECF No. 103, p. 2]. They emphasize that Velazquez would not have shared his views with an attorney who was in the type of adversarial role which Diaz is in as co-counsel for Plaintiff. They say there is a "troubling" conflict because Diaz now has "intimate knowledge" of his former client and current friend. Id. at pp. 3-4. And they argue that the "police issues" discussed between Diaz and Velazquez are substantially similar to the issues involved in the instant lawsuit. Id. at p. 4.
Defendants highlight the fact that Monell claims are in this case, which implicates the Chief's policies and his views about the Police Department's customs and practices. They suggest that Diaz "conveniently (or cunningly) did not make those [ Monell ] claims clear to Velazquez when he obtained the Chief's permission to join the lawsuit. Id. at p. 5.
Nevertheless, Defendants concede that the "conflict here arises under a unique set of facts for which a case-on-point upon which Defendant Officers can rely does not appear to exist ." Id. at p. 3 (emphasis added).
Plaintiff emphasizes that Diaz has never represented the City nor the Defendant Officers, and that Velazquez is not a named party defendant. She notes that Diaz never represented Velazquez on any matter substantially related to this lawsuit. Although Diaz and Velazquez would sometimes have a general discussion of current law enforcement issues, the discussion was limited to information already in the public domain through news reports, Plaintiff says. Significantly, Plaintiff notes, Velazquez testified that he never discussed with Diaz any internal investigations or handling by the Hialeah Police Department and that he never divulged to Diaz any sensitive or confidential information.
G. The Hearing and Plaintiff's Rejected Offer to Eliminate the Dispute
During the hearing, in an effort to eliminate the dispute over the requested disqualification, Plaintiff offered to drop her remaining claim against the City, a position which would remove the Monell issue (which is a theory authorizing liability against a local government unit like the City of Hialeah). In exchange, the disqualification motion would be withdrawn. As part of her proposal, Plaintiff also offered to guarantee that Diaz would not examine Velazquez (at either a continued deposition or at trial) and would not even be present during any Velazquez testimony.
The City, through its counsel, immediately agreed to the proposal. Counsel for Lt. Luis and counsel for the other Defendant Officers said they could not respond to the proposal without speaking with their clients, so the Undersigned gave them until December 3, 2020 to advise the Court of their clients’ positions. [ECF No. 112, pp. 59-61]. On December 3, 2020, all the Defendant Officers (including Lt. Luis) filed a joint notice, advising that they do not accept Plaintiff's proposed stipulation. [ECF No. 108].
II. Applicable Legal Standards and Analysis
"The party bringing the motion to disqualify bears the burden of proving the grounds for disqualification." Herrmann v. GutterGuard, Inc. , 199 F. App'x. 745, 751 (11th Cir. 2006) (citing In re BellSouth Corp. , 334 F.3d 941, 961 (11th Cir. 2003) ). "Motions to disqualify are governed by two sources of authority. First, attorneys are bound by the local rules of the court in which they appear ... Second, federal common law also governs attorneys’ professional conduct because motions to disqualify are substantive motions affecting the rights of parties." Hermann , 199 F. App'x at 752.
S.D. Fla. Local Rule 11.1(c) provides, in relevant part, that "[(t)he standards of professional conduct of members of the Bar of this Court shall include the current Rules Regulating The Florida Bar."
In turn, Rule 4-1.9 provides, in relevant part:
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 ..."
R. Regulating the Fla. Bar 4-1.9 (emphasis added).
"Matters are ‘substantially related’ for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client." Comment to R. Regulating the Fla. Bar 4-1.9. "[T]he 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." Id.
In order to prevail on a motion to disqualify under Rule 4-1.9, the movant must establish: (i) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship; and (ii) that the matters in the pending suit are substantially related to the previous matters or causes of action in which the attorney represented the client. Estate of Jones ex rel. Gay v. Beverly Health & Rehab. Servs., Inc. , 68 F. Supp. 2d 1304, 1308 (N.D. Fla. 1999) (citing to Cox v. American Cast Iron Pipe Co. , 847 F.2d 725, 728 (11th Cir. 1988) ).
In their motion, however, Defendants omitted the essential requirement that the party seeking disqualification (i.e., the City and the officers) must be the ones involved in the attorney-client relationship with the attorney who is subject to the disqualification motion. More on this later.
When evaluating disqualification motions, judges need to also recognize that "[d]isqualification of one's chosen counsel is a drastic remedy that should be resorted to sparingly ." Armor Screen Corp. v. Storm Catcher, Inc. , 709 F. Supp. 2d 1309, 1310 (S.D. Fla. 2010) (emphasis added) (citing Norton v. Tallahassee Mem'l Hosp. , 689 F.2d 938, 941 n.4 (11th Cir. 1982) ).
Courts must "be conscious of [their] responsibility to preserve a reasonable balance between the need to ensure ethical conduct of lawyers appearing before [them] and other social interests, which include [a] litigant's right to freely choose counsel." Woods v. Covington Cnty. Bank , 537 F.2d 804, 810 (5th Cir. 1976).
Parties presumptively are entitled to counsel of their choice, a choice that may be overridden only for exceptionally compelling reasons. In re BellSouth Corp. , 334 F.3d at 961 ; see also Jawhbs, LLC v. Arevalo , 224 F. Supp. 3d 1296, 1299 (S.D. Fla. 2016) (citing Metrahealth Ins. Co. v. Ancote Psychiatric Hosp., Ltd. , 961 F. Supp. 1580, 1582 (M.D. Fla. 1997) (holding that "courts should hesitate to impose" orders for disqualification "except when absolutely necessary")).
Disqualification of counsel is generally not in the public interest. See Jeudine v. City of Homestead , No. 14-23896-CIV-MARTINEZ/GOODMAN, 2016 WL 913261, at *5-6 (S.D. Fla. Mar. 9, 2016) (quoting First Impressions Design & Mgmt., Inc. v. All That Style Interiors, Inc. , 122 F. Supp. 2d 1352, 1354-55 (S.D. Fla. 2000) ).
In Plaintiff's response to Defendant's motion to disqualify Diaz as counsel for Plaintiff, she argues that a party seeking to disqualify opposing counsel on the basis of a former-client conflict of interest must prove two things. [ECF No. 100, p. 7]. Namely, the movant (here, the City and the officers) must demonstrate that he, she or it once enjoyed an attorney-client relationship with the attorney to be disqualified and that the present matter is substantially related to the previous representation. See Cox , 847 F.2d at 728.
There are numerous cases standing for the principle that these two prongs must be met for an order of disqualification. For example, in Cox , the case first cited by Plaintiff, the court found that "[t]he ethical rules do not preclude an attorney from ever representing an interest adverse to that of a former client." Id. The "two-prong test for disqualification of counsel" consists of the following elements: "first, the party seeking disqualification must prove that it once enjoyed an attorney-client relationship with the opposing lawyer; and second, the movant must ‘show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented [it].’ " Id. (quoting Wilson P. Abraham Constr. Corp. v. Armco Steel Corp. , 559 F.2d 250, 252 (5th Cir. 1977) ).
"This test recognizes that many times there exists no genuine threat that any confidences of the former client would be disclosed to its adversary. At the same time, however, it prevents the client from being forced to reveal the confidences as a prerequisite to disqualification of its former attorney." Id. at 728-29 ; see also Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 646 F.2d 1020, 1027-28 (5th Cir. 1981) ("Although rigidly enforcing the ethical obligation of confidentiality, the courts have seen no need to fashion a rule that prevents an attorney from ever representing an interest adverse to that of a former client. Thus, to disqualify his former counsel, the moving party must prove not only the existence of prior attorney-client relationship but also that there is a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary.").
The party moving for disqualification "need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him." Duncan , 646 F.2d at 1027-28 (5th Cir. 1981) (emphasis added) (citing Wilson P. Abraham Constr. Corp. , 559 F.2d at 252 ); see also In re Yarn Processing Patent Validity Litig. , 530 F.2d 83, 89 (5th Cir. 1976) (emphasis added) ("A former client seeking to disqualify an attorney who appears on behalf of his adversary need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him ").
The two-prong test has been recognized and used in the Southern District.
For example, in Rodriguez v. N. Broward Hospital Dist. , No. 08-62062-CIV, 2009 WL 10667197, at *2 (S.D. Fla. June 25, 2009), in denying defendant's motion to disqualify plaintiff, the Court found the defendant "carries the extraordinary burden of satisfying two prongs under Canon 4 of the American Bar Association's Code of Professional Responsibility to obtain the disqualification of Plaintiff's counsel, as disqualification of a party's chosen counsel should be employed sparingly." Id. (citing Herrera-Shorthouse v. La Cubana Bail Bonds, Inc. , No. 98-1888-CIV, 1999 WL 33266031, at *2 (S.D. Fla. July 14, 1999) ). "The first prong requires the party seeking disqualification to show that it once enjoyed an attorney-client relationship with the opposing lawyer." Rodriguez , 2009 WL 10667197, at *2 (citing Cox , 847 F.2d at 728 ).
After finding that the first prong was satisfied, the N. Broward Hospital Dist. Court noted that "[t]he second prong requires the District to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented it." Id. "[M]atters are ‘substantially related’ if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client." Id. (citing Health Care and Retirement Corp. of Am., Inc. v. Bradley , 961 So. 2d 1071, 1073 (Fla. 4th DCA 2007) ).
The Court found that the case handled by counsel previously was not substantially related to the case at issue. The "two cases, while raising claims of discriminatory treatment, will turn on their separate and distinct facts," such as plaintiffs of different races (in the prior case the plaintiff was black in a non-management role while in the Rodriguez case the plaintiff was Hispanic in a management role). The Court held that:
[u]nder Canon 9, a lawyer should avoid even the appearance of professional impropriety to protect the former client and to preserve the public's confidence in the judicial system and legal profession ... Here, the Court is satisfied that counsel's representation of Rodriguez does not run afoul of Canon 9. It has not been shown that Plaintiff's counsel is privy to information not available to others who would seek publicly available documents from [defendant].
Id. (internal citation omitted).
That case involved a situation where the attorney did in fact represent the defendant in a prior action (i.e., the first prong was satisfied), but the two cases were not found to be substantially similar. In contrast, in the instant case, there has never been an attorney-client relationship between Diaz and any of the Defendants, who are the parties moving for his disqualification. Although Diaz represented Velazquez in the past, it was involving personal matters and not directly involving his role as police chief.
In Hamilton Grp. Funding, Inc. v. Basel , No. 16-61145-CIV, 2018 WL 3546242, at *4-5 (S.D. Fla. July 24, 2018), the Court denied defendant's motion to disqualify plaintiff's counsel. "In order to found disqualification on conflicts, the Eleventh Circuit employs a two-part test: [F]irst, the party seeking disqualification must prove that it once enjoyed an attorney-client relationship with the opposing lawyer ; and second, the movant must ‘show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented [it].’ " Id. (emphasis added) (citing Cox , 847 F.2d at 728-29 ).
The Court found that defendant did not prove that he ever had an attorney-client relationship with plaintiff's counsel at Akerman, as opposed to the fact that Akerman had an attorney-client relationship with plaintiff and defendant was, at the time of his deposition, an employee of plaintiff. Nevertheless, "[e]ven if the Court were to find that Akerman had in fact represented Defendant such that a conflict of interest existed between its investigating and filing the above-styled cause against him, as a former client, ‘[i]t is well-settled that disqualification is not mandatory even after a finding that a law firm has violated a conflict of interest rule.’ " Id. (citing Great American Ins. Co. v. General Contractors & Constr. Momt., Inc. , No. 07-21489-CIV, 2008 WL 1994857, at *1 (S.D. Fla. May 6, 2008) ; Prudential Ins. Co. of America v. Anodyne, Inc. , 365 F. Supp. 2d 1232, 1236 (S.D. Fla. 2005) ).
The Officers argue that an attorney-client relationship pre-dated the existence of this lawsuit. However, as Plaintiff points out, Diaz has had attorney-client relationships with many people. But just a relationship is not enough. To disqualify, the person seeking disqualification must have enjoyed an attorney-client relationship with the attorney. See Cox, 847 F.2d at 728. Diaz never represented any of the Defendant Officers and Diaz never represented the City. No party here (other than Perez) can claim to have ever enjoyed an attorney-client relationship with Diaz.
Thus, the widely recognized two-prong standard is favorable for Plaintiff because Diaz never represented any of the named Defendants and does not have an attorney-client relationship with any of them. Because Diaz has never represented any of the Defendants, Defendants have not even met the first prong of Rule 4-1.9 and do not have a solid basis to move for Diaz's disqualification.
Defendants do not directly address this two-prong requirement in their reply. In Paragraph 11 of their reply, Defendants argue that "Attorney Diaz has such intimate knowledge of his former client and friend, and ... the police issues discussed between Attorney Diaz and Chief Velazquez during their attorney-client relationship are substantially similar to the issues asserted by Plaintiff in this case." [ECF No. 103, p. 4]. Defendants ignore the requirement that they, as movants, must have had a prior attorney-client relationship with Diaz. Perhaps this significant inability to meet the standard is why Defendants say that there appears to be no case on point for such "unique" facts. Id. at p. 3. Although Defendants have not established the first element, the Undersigned will, in an abundance of caution, now turn to the second requirement: whether the two matters are substantially related.
According to the Officers, to determine whether the matters in which Diaz formerly represented Velazquez are substantially related to this case in which Diaz represents Perez, the Court should focus on the "precise nature" of the present and former representations. [ECF No. 90, p. 8]. But focusing on the precise nature of the two representations does not generate much support for the disqualification motion.
Diaz's past representation of Velazquez involved matters unrelated to the present excessive-force civil-rights action. The Officers argue that the length of Diaz's representation of Velazquez is a highly determinative factor. But the Officers do not rely on any authority to support the view that time of representation somehow determines the "precise nature" of a representation. Id. at pp. 8-9.
The Officers note that Diaz, for an extended period, served as personal attorney to Velazquez. The Officers do not allege that Diaz ever served as attorney to Velazquez in his official capacity as Chief of Police. There has been no evidence presented to establish that Diaz served Velazquez in that capacity.
The Officers further focus on Diaz's representation as Velazquez's counsel in an ongoing ethics matter, which the Officers characterize as "related to his position as Chief." Id. at p. 9. Continuing, the Officers surmise that "the matters or transactions in ... Diaz's representation of ... Velazquez are relevantly interconnected with those at issue in this matter, likely reveal the client's pattern of conduct, and are important to the issues involved in this matter." Id. But the Undersigned is far from convinced of this purported connection.
The ongoing ethics matter, which Plaintiff says is a matter of public record which appears to now be closed, does not involve any official or policy-setting acts of Velazquez as Chief of Police. Instead, it concerns his off-duty activities and the proper reporting of them.
Plaintiff points out that all officers must report outside employment, not just the Chief; the requirement applies to all law enforcement officers, not only to department heads. Thus, the ethics matter is grounded on Velazquez being an officer , rather than on his being specifically the Chief of Police. Nor have the Officers shown that the matters or transactions in the prior representation -- Velazquez's off-duty activities -- are in fact linked in any way with those at issue in the instant case.
Defendants have not challenged Plaintiff's representation that the ethics matter appears to be closed or that it involves (or involved) Velasquez's reporting of matters because he is an officer.
How would the Chief's reporting of off-duty activities be related to customs and practices relevant to a police shooting after a high-speed chase? Defendants do not explain.
Although the Officers contend that "the matters or transactions" in the ethics matter "likely reveal the client's pattern of conduct," they fail to explain the relevance of Velazquez's "pattern of conduct" in his off-duty activities to an excessive-force civil-rights action or how they are "important to the issues involved in this matter." [ECF No. 90, p. 9].
In their motion, Defendants say that Diaz's role as co-counsel for Plaintiff in this case "may very well confer an unfair advantage upon Plaintiff, and will present an outrageous conflict in these proceedings." Id. They argue that a conflict is inevitable because Diaz, who represented Velazquez in the ethics matter, "will now be in a position to cross examine the Chief of Police on the manner in which he ran the City of Hialeah Department." Id. at pp. 9-10.
Branding a scenario as "outrageous" does not make it so. [ECF No. 90, p. 9]. To be sure, there are scenarios where a conflict is so severe and direct that it could fairly be described as outrageous. This is not one of them. This lawsuit does not involve Velazquez's compliance or alleged non-compliance with off-duty reporting requirements. And the ethics matter did not involve a police shooting, a police chase or police officers’ compliance with procedures for handling on-the-street criminal episodes as they unfold. The so-called connection between the two is hardly an outrageous conflict. To the contrary, there appears to be no connection at all.
And therefore, what?
The argument makes sense only if the ethics matter involves how the Chief ran the police department. But it did not. So the Undersigned is at a loss to the source of the purported possible unfair advantage.
Defendants gripe about Diaz's alleged ability to cross-examine Velazquez on "the manner in which he ran" the department. Id. Any attorney could cross-examine Velazquez on that topic if that lawyer represents Plaintiff. Therefore, Defendants’ point is not that Diaz could cross-examine the Chief. Rather, it is their implicit contention that he might be too successful because of his representation of Velazquez in the ethics matter and because of his friendly relationship with the Chief (and their general discussions of current law enforcement events).
Of course, Rule 4-1.9 and the two-pronged test do not have a "but-they're-friendly" branch of the disqualification rule. Instead, as noted above, they contain two requirements, and Defendants have met neither of them.
On the other hand, the fact that Diaz formerly represented Velazquez (though not on a substantially similar matter), sometimes has lunch with him, and sometimes talks with him in general about police cases in the news may generate a vague sense of uneasiness over Diaz's involvement as co-counsel for Plaintiff. On the surface, these circumstances could cause Defendants to feel concerned about a potential risk of an unfair advantage. These apparent concerns do not generate grounds for relief under Rule 4-1.9 (the only disqualification rule cited in the motion), but the Undersigned certainly appreciates the reality that the Defendants are unhappy over the current arrangement and want relief to eliminate or ameliorate the scenario which they deem problematic and improper.
Fortunately, Plaintiff has offered to stipulate in an agreed order that "Diaz may not cross-examine Velazquez at all in this matter or even be present when Velazquez testifies." [ECF No. 100, p. 10].
In order to eliminate or substantially ameliorate any potential unfair prejudice to Defendants arising from Diaz's new role as Plaintiff's co-counsel, the Undersigned will order Dias and Plaintiff to comply with the proffered stipulation.
Defendants also suggest that Diaz's earlier offer to mediate the case is somehow improper and generates further support for the disqualification motion. The Undersigned is not convinced. Diaz's suggestion that he help resolve the case at a mediation went nowhere: the City Attorney was not interested and Diaz did not mediate this lawsuit.
In addition, the Undersigned will also require additional protective steps -- and they are the type which United States District Judge Patricia A. Seitz used in United States v. Magluta, No. 1:99-cr-00583 (S.D. Fla. Dec. 26, 2002, [ECF No. 2647]). In that Order, the Court vacated a magistrate judge's order of disqualification in one of the most well-known criminal prosecutions in this District and permitted criminal defense counsel to remain in the case but imposed conditions: (1) the attorney was required to faithfully preserve the confidences of his former client; (2) the attorney could not be in court during his former client's testimony; (3) another co-counsel cross-examine the former client; (4) any reference to the former client's testimony in closing argument could not be made by the attorney (but had to be made by co-counsel) ; and (5) none of the parties or witnesses mention that the attorney was counsel for the witness.
At the hearing, Diaz already offered this as one element of a multi-faceted proffered stipulation. ("And I will not address Monnell [Monell ], openings, closings. I will not attack his credibility. It's broader than just that. That will be handled by the other lawyers.") [ECF No. 112, p. 61].
III. Conclusion
For the reasons described herein, the Undersigned denies Defendants’ disqualification motion but will provide the following relief, most of which Plaintiff and Diaz already offered on their own:
1. Diaz may not question Velazquez in any way in this case (including a further deposition on the merits or at trial).
2. Diaz may not be in the room where Velazquez's deposition occurs and may not be in the courtroom when he testifies at trial.
3. Diaz may not in any way (directly or indirectly, in writing or orally) suggest to his co-counsel any questions or avenues of inquiry for Velazquez's cross-examination during deposition or trial.
4. Diaz must preserve the confidences he learned during his representation of Velazquez.
5. Diaz may not in opening statement, closing argument or other in-court comments make any reference to the reliability or credibility of Velazquez's testimony.
6. Diaz may not in any way let the jury know that he used to represent Velazquez. Similarly, Plaintiff or her co-counsel may not do this either.
IV. Objections
"Because a pre-trial motion to disqualify [...] counsel is a non-dispositive motion, the Court must apply the clearly erroneous or contrary to law standard in its review" of this Order. Magluta , No. 1:99-cr-00583 (S.D. Fla. Dec. 26, 2002, [ECF No. 2647, p. 2]); see 28 U.S.C. § 636(b)(1)(A) ; see also Local Magistrate Judge Rule 4(a), Southern District of Florida.
"A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law."
"The District Judge shall consider the appeal and shall set aside any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law."
"A finding is clearly erroneous only if ‘the reviewing court, after assessing the evidence in its entirety, is left with a definite and firm conviction that a mistake has been committed.’ " Id. (quoting Krys v. Lufthansa German Airlines , 119 F.3d 1515, 1523 (11th Cir. 1997) ). Or, as the Seventh Circuit has put it: "[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish." Parts & Elec. Motors v. Sterling Elec., Inc. , 866 F.2d 228, 233 (7th Cir. 1988). "The mere fact that a reviewing court might have decided the issue differently is not sufficient to overturn a decision when there are two permissible views of the issue." Pendlebury v. Starbucks Coffee Co. , Case No. 04-80521, 2007 WL 4592267, at *2-3 (S.D. Fla. Dec. 28, 2007) (internal citation omitted). "[T]he ‘clear error’ exception must be rarely invoked." Cox Enters., Inc. v. News-Journal Corp. , 794 F.3d 1259, 1272 (11th Cir. 2015).
DONE AND ORDERED in Chambers, in Miami, Florida, on December 14, 2020.