       Third District Court of Appeal
                                State of Florida

                          Opinion filed October 14, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D14-2587
                     Lower Tribunal Nos. 09-59626; 14-3592
                              ________________

                                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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