Opinion
CASE NO. 20-61307-CIV-SINGHAL/VALLE
2022-02-10
VITAL PHARMACEUTICALS, INC. d/b/a VPX Sports/Redline/Bank Energy, a Florida corporation, Plaintiff, v. Christopher ALFIERI, an individual, Adam Perry, an individual, Andrew LaRocca, an individual, Amy Maros, an individual, and Elegance Brands, Inc., a Delaware corporation, Defendants.
Peter Ronai Goldman, Nina Christine Welch, Scott Douglas Knapp, Nelson Mullins Broad and Cassel, Fort Lauderdale, FL, Stephanie Souraya Khouri, Vital Pharmaceuticals, Inc., Weston, FL, Gregg Howard Metzger, Law Office of Gregg H. Metzger, Pembroke Pines, FL, for Plaintiff. Patrick H. Gonyea, Law Firm of Patrick H. Gonyea, P.A. Law Firm of Patrick H. Gonyea, P.A., Tampa, FL, for Defendants Christopher Alfieri 6289 Fernstone Trail NW Acworth, Ga 30101, Andrew LaRocca 28 McEvers Branch Court Acworth, Ga 30101. Mark Jay Berkowitz, Fort Lauderdale, FL, for Defendant Amy Maros 871 Bowens Mill Hwy Fitzgerald, Ga 31750. Chris Kleppin, The Kleppin Firm, P.A., Plantation, FL, Robert William Wilkins, Jones Foster PA, West Palm Beach, FL, for Defendant Elegance Brands, Inc. c/o Raj Beri 8605 Santa Monica Blvd PMB 39154 West Hollywood, CA 90069-4109.
Peter Ronai Goldman, Nina Christine Welch, Scott Douglas Knapp, Nelson Mullins Broad and Cassel, Fort Lauderdale, FL, Stephanie Souraya Khouri, Vital Pharmaceuticals, Inc., Weston, FL, Gregg Howard Metzger, Law Office of Gregg H. Metzger, Pembroke Pines, FL, for Plaintiff.
Patrick H. Gonyea, Law Firm of Patrick H. Gonyea, P.A. Law Firm of Patrick H. Gonyea, P.A., Tampa, FL, for Defendants Christopher Alfieri 6289 Fernstone Trail NW Acworth, Ga 30101, Andrew LaRocca 28 McEvers Branch Court Acworth, Ga 30101.
Mark Jay Berkowitz, Fort Lauderdale, FL, for Defendant Amy Maros 871 Bowens Mill Hwy Fitzgerald, Ga 31750.
Chris Kleppin, The Kleppin Firm, P.A., Plantation, FL, Robert William Wilkins, Jones Foster PA, West Palm Beach, FL, for Defendant Elegance Brands, Inc. c/o Raj Beri 8605 Santa Monica Blvd PMB 39154 West Hollywood, CA 90069-4109.
ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE THIS CAUSE is before the Court upon Plaintiff's Motion for Disqualification of Defendants’ Counsel, The Kleppin Law Firm (DE [143]). The 33 page Motion generated a 43 page Response in Opposition (DE [151]) , a thirty page Reply (DE [154]), a forty page Motion for Leave to File a Sur-reply to Plaintiff's Reply in Support of Its Motion for Disqualification (Partially Unopposed) (DE [155]) , and finally a Response in Opposition to the Motion for Leave to File a Sur-reply to Plaintiff's Reply in Support of Its Motion for Disqualification (Partially Unopposed) (DE [156]). The Motion then being ripe was considered by the Court—in favor of other Motions as it dealt with disqualification of counsel—until on February 9, 2022 the Court received a Notice of Withdrawal of the original motion.
Including four exhibits.
Also including four exhibits.
With two exhibits including the proposed Sur-reply.
In essence, the posture of Plaintiff's arguments is this: defense counsel for Elegance Brands, Inc. should be disqualified, because just as they were disqualified in a recent substantially similar case by Judge Frink, they are violating the Rules Regulating the Florida Bar. But now Judge, says the Plaintiff, "[b]ased on the resolution of this case against Elegance Brands, Inc." allow the Motion to be withdrawn. Something just seems a bit odd with that position; accordingly, this Order follows.
The Court notes that on CM/ECF Exhibit 1 to (DE [143]) is six blank pages. So, the Court pulled Judge Frink's Order off the Broward Clerk website.
I. BACKGROUND
Donna Williams ("Williams") worked as a paraprofessional for Plaintiff Vital Pharmaceuticals, Inc. ("VPX") from 2013 to January 2020. DE [143-4] ¶ 4–6. In this role, Williams provided support to the VPX legal department and its attorneys, served as a representative on behalf of the legal department in connection with various VPX legal matters, and served as an initial recipient for all communications to the legal department, among various other administrative functions. DE [143] at 3–4. Additionally, Williams assisted VPX attorneys with various aspects of discovery, communicated with outside counsel regarding ongoing litigation matters, attended meetings with VPX in-house attorneys and outside counsel concerning pending litigation, took notes at these meetings for VPX's General Counsel and Associate General Counsel, and assisted the legal department with internal legal issues such as human resources matters and employment agreements. DE [143] at 4. Williams was terminated on or about January 1, 2020. DE [151] at 2. The individual Defendants in the present action were hired by VPX in the latter part of 2019 and separated from VPX in early-to-mid 2020. Id. Counsel for Defendants, The Kleppin Law Firm ("Kleppin"), currently represents Williams in a separate employment discrimination lawsuit against VPX. DE [151] at 3. VPX argues that Kleppin should be disqualified from the present action because of its concurrent representation of Williams.
II. STANDARD OF REVIEW
When ruling on a motion to disqualify counsel, a court must "be conscious of its responsibility to preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests, which include the litigant's right to freely chosen counsel." Armor Screen Corp. v. Storm Catcher, Inc. , 709 F. Supp. 2d 1309, 1317 (S.D. Fla. 2010) (quoting Woods v. Covington County Bank , 537 F.2d 804, 810 (5th Cir. 1976) ). Disqualification of counsel "should be resorted to sparingly and ... should be ordered only where there exists a reasonable possibility that the impropriety already has occurred." Norton v. Tallahassee Memorial Hospl. , 689 F.2d 938, 941 n.4 (11th Cir. 1982). And "[b]ecause a party is presumptively entitled to the counsel of his choice, that right may be overridden only if ‘compelling reasons’ exist." In re BellSouth Corp. , 334 F.3d 941, 961 (11th Cir. 2003).
Motions to disqualify counsel are governed by (i) the local rules of the court in which they appear and (ii) the federal common law. Herrmann v. GutterGuard, Inc. , 199 Fed. Appx. 745, 752 (11th Cir. 2006). A party seeking to disqualify counsel bears the burden to prove the grounds for disqualification. BellSouth , 334 F.3d at 961. To properly disqualify counsel, a court "must clearly identify a specific Rule of Professional Conduct which is applicable to the relevant jurisdiction and must conclude that the attorney violated that rule." Schlumberger Technologies, Inc. v. Wiley , 113 F.3d 1553, 1561 (11th Cir. 1997). The Rules Regulating the Florida Bar govern the professional conduct of attorneys in the Southern District of Florida. See S.D. Fla. Local Rule 11.1(C).
III. DISCUSSION
1. Whether Rule 4-1.10(b) is a basis to disqualify Kleppin.
VPX argues that Rule 4-1.10(b) of The Rules Regulating the Florida Bar serves as a basis to disqualify Kleppin from the present action. Rule 4-1.10(b) provides:
(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.
Fla. R. Reg. Fla. Bar 4-1.10. VPX argues that Rule 4-1.10(b) applies even though Williams is neither a lawyer nor an employee of Kleppin. VPX cites to a previous state court action against VPX in which Kleppin was disqualified (in a state court order that was affirmed by a per curiam appellate decision without opinion) on the basis of its representation of Williams. See Ohel v. Vital Pharmaceuticals, Inc. , No. 4D21-813, 2021 WL 4898930 (Fla. 4th DCA Oct. 21, 2021) (Fourth District affirming trial court's order granting VPX's motion for disqualification of Kleppin). That court found that "[a]lthough Ms. Williams’ relationship with Kleppin is attorney/client rather than employer/employee, the issue is whether she has actual knowledge of confidential information." Id. VPX contends that, based on Williams’ substantive duties as a paraprofessional and her close involvement with VPX's legal affairs, she has actual knowledge of confidential case strategy, decision-making, and work product, leading up to the commencement of the present action.
Defendants contend that the rules do not apply to Williams because she is neither a lawyer nor employee of Kleppin, but rather a client in a separate discrimination lawsuit against VPX. Moreover, defendants argue Williams’ lawsuit is not substantially related to the present action because it involves different witnesses, different timeframes, and a different subject matter. Defendants argue that the state court erred in its decision and that VPX has the burden to establish that confidential information was actually disclosed to Kleppin. Defendants represent that Williams has, at no time, disclosed to Kleppin any privileged or confidential information that she acquired during her time with VPX.
Under a plain meaning interpretation, Rule 4-1.10(b) is not applicable to the facts before this Court. Even assuming the rule encompasses both lawyers and non-lawyer employees, the rule does not reach as far as Plaintiffs would like. Applied to this case, the rule reads:
When a [paraprofessional] becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that [paraprofessional], or a firm with which the [paraprofessional] was associated, had previously represented a client whose interests are materially adverse to that person and about whom the [paraprofessional] had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.
Fla. R. Reg. Fla. Bar 4-1.10 (altered). For this rule to even be triggered, "a [paraprofessional] [must] become[ ] associated with a firm." Id. Thus, the issue presented is whether Williams became associated with Kleppin when she retained Kleppin for legal representation. To determine the meaning of "association," the Court first looks to the title of Rule 4-1.10(b), which reads "Former Clients of Newly Associated Lawyer." This language clearly suggests that the meaning of association in this context is that of professional association that is commonplace at almost every law firm. Becoming associated with a law firm means that one has joined that firm and is employed therein. To stretch the meaning of professional association to encompass client representation would strain logic. The Court rejects Plaintiff's argument that Rule 4-1.10 disqualifies Kleppin from the present action. While this Court recognizes the decision here is contrary to the cited state court action, the Court is not bound by that decision.
2. Whether Williams’ alleged exposure to and alleged actual knowledge of VPX's confidential information is a basis to disqualify Kleppin.
VPX next argues that Williams was exposed to and had actual knowledge of VPX's confidential information during her tenure at VPX. Moreover, VPX alleges that Williams was exposed to material, privileged information that is directly relevant to the issues in the present action. Even assuming these factual allegations are true, they are irrelevant in light of the prior discussion of Rule 4-1.10(b) ’s application. The cases cited by VPX all had to do with application of Rule 4-1.10(b) in cases where legal assistants switched firms that were on opposing sides of an action. See Koulisis v. Rivers , 730 So. 2d 289, 292 (Fla. 4th DCA 1999) (motion to disqualify law firm after it hired legal secretary from opposing law firm); First Miami Securities, Inc. v. Sylvia , 780 So. 2d 250, 251 (Fla. 3d DCA 2001) (same). VPX argues that a generalized disqualification rule exists that disqualifies a firm from an action if any of its clients possess privileged, confidential information about an opposing party to that action. No such rule exists. The Court rejects VPX's argument that Williams’ exposure to and actual knowledge of VPX's confidential, privileged information, by itself, is a basis to disqualify Kleppin. 3. Whether Rule 4-4.4(a) and Rule 4-8.4(a) together form a basis to disqualify Kleppin.
VPX finally argues that disqualification is warranted under Rule 4-4.4(a) and 4-8.4(a) of the Rules Regulating the Florida Bar. Rule 4-4.4(a) provides, in pertinent part, that "[i]n representing a client, a lawyer may not ... knowingly use methods of obtaining evidence that violate the legal rights of such a person." Rule 4-8.4(a) prohibits lawyers from "violat[ing] or attempt[ing] to violate the Rules of Professional Conduct, knowingly assist[ing] or induc[ing] another to do so, or do[ing] so through the acts of another." Additionally, VPX cites a portion of the Comments to Fla. R. Reg. Fla. Bar 4-8.4, which states that "the client [cannot be] used to indirectly violate the Rules of Professional Conduct." VPX contends that these provisions prohibit Kleppin from procuring information from Williams concerning her knowledge of privileged, confidential information she obtained during her tenure at VPX. The Court agrees with this contention. However, VPX has made no argument that Kleppin has, in fact, procured information from Williams concerning her knowledge of privileged VPX matters. Rather, VPX seems to argue that the risk of this misconduct occurring is itself an adequate basis to disqualify Kleppin from this action. Yet the rules cited by VPX do not indicate that a risk of their violation is a sufficient basis for attorney disqualification. And no rule saying inasmuch can be found in the Rules Regulating the Florida Bar. In fact, this Circuit has specifically noted that disqualification "should be resorted to sparingly and ... only where there exists a reasonable possibility that the impropriety already has occurred. " Norton , 689 F.2d at 941 n.4. VPX proffers no factual allegations to suggest misconduct has already occurred. If VPX's position were to be adopted by this Court, any attorney could be disqualified at any time because the risk of a professional responsibility rule violation is ever-present. Thus, VPX has not met their burden to prove an actual violation of a Rule Regulating the Florida Bar. Accordingly, the Court rejects VPX's argument that Rule 4-4.4(a) and 4-8.4(a) together form a basis to disqualify Kleppin.
It is therefore ORDERED AND ADJUDGED that Plaintiff's Motion for Disqualification of Defendant's Counsel, The Kleppin Law Firm, (DE [143]) is denied.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 10th day of February 2022.