By Kirk Swanson
A law firm representing the plaintiff in a lawsuit is not subject to imputed disqualification based on the fact that it outsources work to a lawyer who formerly represented the defendant in the same litigation, the U.S. District Court for the Northern District of Florida decided Oct. 5 (Brown v. Florida Dep't of Highway Safety and Motor Vehicles, N.D. Fla., No. 4:09-cv-171-RS-CAS, 10/5/12).
Judge Richard Smoak determined that the former government lawyer--who has not had any involvement with the plaintiff in this matter--is not “associated” with the plaintiff's law firm under their working arrangement. Therefore, he said, the provisions on imputed disqualification in Florida Rules of Professional Conduct 4-1.10 and 4-1.11 are not triggered.
Florida Rules of Professional Conduct 4-1.10 and 4-1.11 both premise a firm's imputed disqualification upon the conflicts of a lawyer who is “associated” with the firm:
Rule 1.10(b) states, in part:
“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….”
Rule 1.11(b) states, in part:
“When a lawyer is disqualified from representation under subdivision (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless” specified conditions are met.
The court stressed that simply denominating a working relationship as “outsourcing” is not the deciding factor. “Determining whether an attorney is associated or unassociated requires an analysis of all the circumstances,” it said.
In nearly identical opinions issued the same day, the court also refused to disqualify the plaintiffs' law firm in several cases, based on the outsourced-work lawyer's former representation of the defendants at a private law firm before she joined the office of the attorney general and prior to her resuming private practice at the outsourcing law firm (Mituma v. Syn-Tech Systems Inc., N.D. Fla., No. 4:11-cv-430-RS-CAS, 10/5/12; Hudson v. Florida Commerce Credit Union, N.D. Fla., No. 4:11-cv-612-RS-CAS, 10/5/12; Roddenberry v. Wakulla County Bd. of County Commissioners, N.D. Fla., No. 4:11-cv-204-RS-CAS, 10/5/12).
The court said that attorney Ashley Moore represented the defendant Florida Department of Highway Safety and Motor Vehicles in this case while she was employed by the state attorney general's office. She left that job and, after working as an associate at a law firm, “for personal and family reasons” went on to the firm of Marie A. Mattox PA, which represents the plaintiff in the same lawsuit.
There is no question that Moore is personally prohibited from participating in this case by Rule 4-1.9, Smoak said.
The dispute is whether Moore's conflict should be imputed to the Mattox firm under Rule 1.10, on vicarious disqualification, or Rule 1.11, which deals with disqualification of firms that include former government lawyers. Both rules use the term “associated,” the court observed. (See box.) Accordingly, Smoak said his task was to decide whether Moore's relationship with Mattox can fairly be characterized as being “associated” with it.
He decided the answer is no. “An attorney to whom work is outsourced--for example, an attorney who contracts to do research or draft pleadings from the attorney's own premises on the attorney's own schedule--ordinarily is not an associate,” Smoak stated.
Smoak said that under her arrangement with the Mattox firm, Moore works at home preparing summary judgment responses as assigned, and possibly drafting pleadings. She is paid an hourly rate but does not receive fringe benefits that attorneys in the firm's offices get. The relationship is “of indefinite duration, terminable at will by either side,” is not exclusive, and there is no expectation that Moore will contact any clients or advance to a higher position in the firm, the court said.
Mattox herself is the attorney for the plaintiff in this case, and Moore has had nothing to do with it at the firm and has adhered to her professional obligations to her former client under Rule 1.9, the court added.
The court acknowledged that “The meaning of 'associated' is not completely clear.” But it recognized that nontraditional relationships among lawyers and law firms such as outsourcing are increasingly used and officially accepted in the legal profession, and Smoak said that “A rigid system that prevented the practice would serve little purpose.”
Examining the details of the Mattox-Moore arrangement convinced the court that “this is an outsourcing relationship,” so that Rule 1.10's “imputed-disqualification provision does not apply.”
Because the same test of “associated” is used in Rule 1.11, the imputed-disqualification provision in that rule is inapplicable as well, the court added.
Smoak made clear that the evidence did not all point in one direction. He observed that Moore had received a Mattox firm email address, called herself an associate, used the firm's mailing address in her contact information with the Florida Bar, and received her first paycheck as an employee of the firm rather than an independent contractor.
The court also questioned some of the actions the firm and Moore took when the state complained of the conflict in this case:
When the disqualification issue arose, the firm and Ms. Moore walked some of this back, giving the impression of an attempted cover-up. But the substance of the relationship is much more important than where the attorney gets her email or whether the firm pays her employment and Medicare taxes. In substance, the firm has outsourced work to Ms. Moore.
Smoak saw nothing to substantiate the state's expressed concerns “that Ms. Moore sat in on confidential discussions [while representing the defendant] and now has a relationship with the plaintiff's law firm.”
“For all that appears in the record,” the court said, Moore is aware of her duty not to divulge or use confidential information about her former client, “has complied with her obligation and will continue to do so. This order mandates it.”
Brown was represented by Marie A. Mattox and Tiffany Rousseau Cruz of Marie A. Mattox PA, Tallahassee, Fla. The defendants were represented by Glen Allen Bassett of the Office of the Attorney General, Tallahassee.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8yssx3.
Full text of the Mituma, Hudson, and Roddenberry opinions at http://op.bna.com/mopc.nsf/r?Open=kswn-8ywkbz.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
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