Lue Ethel Russ, as personal representative of the estate of Roosevelt Sutton v. Philip Morris USA, Inc., and R.J. Reynolds Tobacco Co. , 254 So. 3d 1146 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-1847
_____________________________
LUE ETHEL RUSS, as personal
representative of the estate of
Roosevelt Sutton,
Petitioner,
v.
PHILIP MORRIS USA, INC., and
R.J. REYNOLDS TOBACCO CO.,
Respondents.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction
September 5, 2018
PER CURIAM.
Lue Ethel Russ petitions for a writ of certiorari, contending
the trial court departed from the essential requirements of law
when it disqualified the law firm representing her. The suit below
is a wrongful death suit against tobacco companies, including the
Respondents here: Philip Morris USA, Inc., and R.J. Reynolds. We
conclude that the trial court did not disregard any clearly
established principle of law, so we deny the petition.
In the trial court, Respondents moved for an order
disqualifying the Ferraro Law Firm, which had been representing
Russ. The Respondents’ motion explained that Paulo Lima, then
an attorney with the Ferraro Firm, previously represented Philip
Morris when he worked for Hunton & Williams. Respondents
accused Lima of “switching sides” and alleged that his move
created a conflict of interest that not only disqualified Lima but
also imputed the conflict to the Ferraro Firm. In support,
Respondents filed (among other things) copies of Lima’s time
records from Hunton & Williams and an affidavit from a Hunton
& Williams partner who said Lima’s work on Philip Morris’s Engle-
progeny cases included review of confidential company materials.
About a year after Respondents filed their motion, the trial
court held a hearing on it. By then, the Fourth District had decided
Philip Morris v. Caro, which also related to a disqualification order
directed at Lima and the Ferraro Firm in a tobacco case. 207 So.
3d 944 (Fla. 4th DCA 2016). In Caro, on essentially the same facts
presented below, the district court concluded that Lima and the
firm should have been disqualified. Id. at 950-51. Russ argued that
Caro was distinguishable because when it was decided, Lima
remained with the firm. After Caro issued—and some four days
before the hearing in Russ’s case—the Ferraro Firm terminated
Lima’s employment. Thus, Russ argued, the termination cured the
conflict, and Lima’s disqualification no longer precluded the firm’s
representation.
Respondents argued that Lima’s termination was too little,
too late. According to them, the conflict did not go away “just
because you terminate the lawyer that created the imputation
problem to begin with.” The trial court agreed, concluding that
Lima’s departure “does not attenuate the taint.” The court granted
the motion to disqualify Lima and the firm. Russ then filed her
certiorari petition.
“Certiorari is the appropriate remedy to review an order
granting a motion to disqualify counsel.” Anheuser-Busch Cos., Inc.
v. Staples, 125 So. 3d 309, 311 (Fla. 1st DCA 2013). But we grant
certiorari only “when a lower court has departed from the essential
requirements of the law,” Williams v. Oken, 62 So. 3d 1129, 1132
(Fla. 2011), and that means there must be “something more than
a simple legal error.” Allstate Ins. Co. v. Kaklamanos, 843 So. 2d
885, 889 (Fla. 2003). There must be “a violation of a clearly
established principle of law resulting in a miscarriage of justice.”
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Id. Without any controlling precedent, we cannot grant relief
because we could not say the “circuit court violated a clearly
established principle of law.” Id. (alterations omitted) (quoting Ivey
v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000)).
The issue of the firm’s disqualification is complicated, and it
does not turn on any clearly established legal principles. Indeed,
other courts have disagreed on the merits of Russ’s arguments—in
cases that involve the same conflicted attorney and the same law
firm. For example, in Canta v. Philip Morris USA, Inc., 43 Fla. L.
Weekly D55 (Fla. 3d DCA Dec. 27, 2017), the Third District held
that the Rules Regulating the Florida Bar only allow formerly
conflicted law firms to represent new clients after a conflicted
attorney leaves a firm, likening “‘[u]nimputing’ a conflict” to
“unringing a bell, unscrambling an omelet, or pushing toothpaste
back into the tube.” Id. But in Balaban v. Philip Morris USA Inc.,
240 So. 3d 896, 900 (Fla. 4th DCA 2018) (on rehearing), the Fourth
District took a different approach, holding that once the
disqualified attorney leaves the firm, the rules allow for continued
representation by the formerly conflicted law firm in some
circumstances. And in Caro itself, the court noted that “the same
or similar issues on disqualification have been brought before
other circuit and district courts with varying results.” 207 So. 3d
at 950. As these cases illustrate, there is not yet any clearly
established principle of law that would have compelled the trial
court to deny the disqualification motion. Accordingly, certiorari
relief is unavailable.
DENIED.
BILBREY, WINSOR, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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James L. Ferraro and Juan P. Bauta, II, of the Ferraro Law Firm,
Miami, for Petitioner.
Frances Daphne O’Connor of Arnold & Porter Kaye Scholer, LLP,
Washington D.C., and Christopher P. Nease and Connor J. Sears
of Shook, Hardy & Bacon, LLP, Kansas City, Missouri, for
Respondent Philip Morris USA, Inc.
Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A.,
Pensacola, and Jason T. Burnette of Jones Day, Atlanta, Georgia,
for Respondent R.J. Reynolds Tobacco Co.
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