Risk Update

Disqualification Decision — “Required Reading” (Conflicts, Daubert Expert Rules, Waivers, Appearances & More)

Posted Dan Bressler

“Gunster Out: Miami Judge Disqualifies Shareholder and Law Firm in Insurance Suit” —

  • “The Miami-Dade Circuit Court has approved a motion to disqualify a statewide law firm and one of its shareholders from multi-year insurance litigation.”
  • “Anthony V. Alfieri, the founder and director of the Center for Ethics and Public Service at the University of Miami School of Law, is not involved in the case. But Alfieri said Miller’s decision will be required reading for teachers of legal malpractice and law firm management, and for courts and practitioners in the field.”
  • “‘Putting aside the prominence of the litigation teams and the widely respected expert witness Robert M. Klein, the decision [full text here] stands out not only because of its wide-ranging analysis of Florida ethics rules governing conflicts of interest (4-1.7, 4-1.8, and 4-1.9), and mandatory withdrawal (4-1.16), but also because of its vigorous application of the Daubert standard for expert testimony,’ Alfieri stated in an email Tuesday. ‘Equally important, the decision addresses both the doctrine of waiver and appearance of impropriety standard.'”
  • “Part of the issue is that the law firms represent more than 80 insurance companies, including USAA Casualty Insurance Co. and USAA General Indemnity Co., who are the defendants in this underlying action.”
  • “The law firms have argued since October that Ruiz did not have standing to raise issues primarily based on the conflict of interest arguments. But after multiple hearings, Miller denied motions to dismiss the disqualification motions.”
  • “An appeal to Florida’s Third District Court of Appeal also proved futile, court documents show. And after Miller held an evidentiary hearing, the circuit court ruled that Gunster and one of its shareholders, Angel A. Cortinas, a former Third DCA judge, should be disqualified from the litigation in the circuit court.”
  • “Now, Miller ruled in the order that Gunster and Cortinas also cannot represent Akerman and Greenberg in the appeal of the circuit court order, finding that the law firm and Greenberg had a conflict of interest, and that they failed to produce information and data they were legally required to produce.”
  • “‘The impact of the defendants’ actions are enormous,’ Ruiz said. ‘These lawyers and their clients have to think long and hard how they are representing multiple parties that have conflicts of interest with each other and it’s all to the detriment of the Medicare trust fund.'”