Steinberg v. Robyn & Robert Marlin , 2015 Fla. App. LEXIS 15184 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed October 14, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2587
Lower Tribunal Nos. 09-59626; 14-3592
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Paul Steinberg,
Petitioner,
vs.
Robyn and Robert Marlin,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Marc
Schumacher, Judge.
Buchbinder & Elegant, P.A., and Harris J. Buchbinder, for petitioner.
Broad and Cassel, and Mark F. Raymond, A., Amy Steele Donner, and
Amanda Star Frazer, for respondents.
Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
FERNANDEZ, J.
Paul Steinberg petitions this Court for a writ of certiorari quashing an order
that disqualified Harris J. Buchbinder and his law firm, Buchbinder & Elegant,
P.A., from representing Steinberg in two consolidated lawsuits. Based on the
record before us, we deny the petition on the merits because we find no departure
from the essential requirements of law in the trial court's decision to disqualify
Steinberg’s counsel.
In 1992, Steinberg, Barry Marlin, Kenneth Marlin, Donald Greenwood and
Franklin Frank formed FBK Associates, a Florida general partnership. The FBK
partnership agreement named six partners: Robert Marlin, Kenneth Marlin,
Franklin Frank, Steinberg, Barry Marlin and Donald Greenwood. In 2004, Barry
Marlin, Kenneth Marlin, and Franklin Frank transferred their interests in FBK to
Robyn Marlin, and then withdrew from the partnership. Buchbinder and his law
firm represented Barry Marlin, Kenneth Marlin, and Franklin Marlin.
Buchbinder and his firm represented Robert Marlin and FBK in a previous
case in Broward County from 1997 to 1999. In addition, during the time of this
representation in the Broward County case, Buchbinder and his firm were also
representing FBK in a collection action on behalf of FBK in Miami-Dade County.
In 2012, Robert Marlin moved to disqualify Buchbinder and his firm in the
collections case from representing the defendants in that case, Jack Burstein and
Steven Cook, because it was a matter adverse to Robert Marlin involving issues
relating to FBK. The trial court disqualified Buchbinder and his law firm.
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Thereafter, Burstein and Cook petitioned this Court for a writ of certiorari, which
was denied.
On August 12, 2009, Steinberg filed an action against the Marlins for an
injunction prohibiting them from acting on behalf of FBK and for other relief. He
claimed that the assignment in 2004 by Barry Marlin, Kenneth Marlin, and
Franklin Frank of their interests in FBK to Robyn Marlin was executed without
Steinberg’s consent. On February 10, 2014, FBK filed suit against Steinberg to
recover damages from Steinberg for his failure to contribute capital to FBK. These
two lawsuits were consolidated before the trial court judge.
On August 14, 2014, the Marlins filed a motion to disqualify Steinberg’s
counsel from representing Steinberg in the two consolidated cases, claiming that
Buchbinder formerly represented Robert Marlin and FBK in substantially related
matters in the Broward County case and the Miami-Dade collections case. After a
hearing on the motion for disqualification, the trial court granted the motion based
on two grounds. First, pursuant to rules 4-1.9 and 4-1.10, Rules Regulating the
Florida Bar, the trial court found that Buchbinder and his firm had a conflict of
interest arising from their former representation of Robert Marlin and the interests
of FBK. Second, pursuant to rule 4-3.7, Rules Regulating the Florida Bar, the court
found that Buchbinder was a material fact witness in the two consolidated lawsuits.
Steinberg now petitions this Court for a writ of certiorari.
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An order on a motion to disqualify counsel is properly reviewed by petition
for a writ of certiorari. Manning v. Cooper, 981 So. 2d 668, 670 (Fla. 4th DCA
2008). In addition, an order granting a motion to disqualify a party’s counsel is
reviewed under an abuse of discretion standard. Young v. Achenbauch, 136 So. 3d
575, 580-81 (Fla. 2014). “An order involving the disqualification of counsel must
be tested against the standards imposed by the [Florida Bar] Rules of Professional
Conduct.” Estright v. Bay Point Improvement Ass'n, Inc., 921 So. 2d 810, 811
(Fla. 1st DCA 2006). A party seeking to disqualify opposing counsel based on a
conflict of interest must demonstrate that:
(1) an attorney-client relationship existed, thereby giving
rise to an irrefutable presumption that confidences
were disclosed during the relationship, and (2) the
matter in which the law firm subsequently represented
the interest adverse to the former client was the same
or substantially related to the matter in which it
represented the former client.
State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633 (Fla. 1991). When
these two elements are shown, rule 4-1.9 creates “an irrefutable presumption that
confidences were disclosed” between the client and the attorney. Gaton v. Health
Coalition, Inc., 745 So. 2d 510, 511 (Fla. 3d DCA 1999).
Here, the trial court did not depart from the essential requirements of law in
disqualifying Steinberg’s counsel. The record reflects that an attorney-client
relationship existed between the Marlins and Buchbinder and his law firm.
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Buchbinder and his law firm represented Robert Marlin and FBK in substantially
related matters when Buchbinder and his firm represented Marlin and FBK in the
previously mentioned Broward County case and the Miami-Dade county collection
case. Respondents thus satisfied the requirement for disqualification based on a
conflict of interest relating to former clients. See R. Regulating Fla. Bar 4-1.9.
Steinberg relies on cases, such as Zayas-Bazan v. Marcelin, 40 So. 3d 870
(Fla. 3d DCA 2010), in support of his position that the Marlins waived their right
to seek disqualification. This Court held in that case that a party waived its right to
file a motion to disqualify counsel where it was undisputed that the party had
knowledge of the claimed conflict, yet waited two-and-one-half years before filing
the motion. Zayas-Bazan v. Marcelin, 40 So. 3d at 873. However, we agree with
respondents that Steinberg’s reliance on cases such Zayas-Bazan is misplaced.
Zayas-Bazan is distinguishable because the facts of that case are different
from the case before us. Here, Buchbinder and his firm were previously
disqualified from representing interests adverse to the Marlins in an action relating
to FBK, as previously discussed. In addition, Buchbinder was disqualified based
on information the Marlins learned right before they filed their motion to
disqualify – that Buchbinder is a key fact witness in the trial court case below.
Steinberg’s waiver argument fails because none of the other cases he cites involve
an attorney that was previously disqualified from representing clients adverse to
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the moving party, nor do they involve a disqualified counsel being a material fact
witness.
For these reasons, we cannot say that the trial court abused its discretion in
disqualifying Buchbinder and his law firm as Steinberg’s trial counsel. The petition
for writ of certiorari is denied on the merits because Steinberg failed to establish
that the trial court departed from the essential requirements of the law.
Petition for writ of certiorari denied.
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