Health Care & Ret. Corp. of Am., Inc. v. Bradley, 944 So. 2d 508 (Fla. 4th DCA 2006)

After Plaintiff sued for negligence, Manor Care moved to disqualify Plaintiff’s counsel. The trial court denied the motion. An application for certiorari was filed and granted. From February 2001 through December 2004, Scott Fischer represented Manor Care defending nursing home cases. At the end of December 2004, Fischer left his prior firm and joined Gordon & Doner. Defendants’ motion was to disqualify Fischer’s new firm. Gordon & Doner opposed the motion, arguing that Fischer did not receive any confidential information while representing Manor Care. Apparently, the trial court denied the motion, finding that Manor Care failed to prove that confidential information was shared. On appeal, the court noted initially that motions to disqualify counsel are treated with skepticism because they impinge on a party’s right to employ a lawyer of choice. However, the possibility that one party could gain an unfair advantage over the other requires that the court determine whether confidences bearing on the case at the bar were shared. The Court found, initially, that there is an irrefutable presumption that confidences were disclosed to the client and the attorney; because the trial court erred in failing to apply this presumption, the case was reversed. The only remaining issue is whether the confidences involved are substantially related to the matters in which prior counsel represented the former client. If so, then counsel and his new firm must be disqualified. The nursing home had not shown that the matters were substantially related; the case was remanded for additional hearings as the trial court deemed necessary to decide the motion to disqualify. Prior decision was withdrawn: Health Care & Ret. Corp. of Am., Inc. v. Bradley, 2006 Fla. App. LEXIS 18321 (Fla. 4th DCA 2006).

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