Monday, February 1, 2010

Review Of Illegally Obtained Evidence Justified The Disqualification Of Counsel

In Castellano v. Winthrop (5D09-2978), the Fifth District denied a petition for certiorari seeking to reverse a trial court's order disqualifying the petitioner's counsel.  The court described the facts as follows:
The disqualification was based on the Firm's receipt, review, and use of respondent, Marc Winthrop's ("the Father") USB flash drive that contained electronic files including, inter alia, attorney/client communications, client litigation notes, and attorney work product.
In February 2009, the Mother came into possession of a USB drive that belonged to the Father. It is not necessary to detail the manner in which the Father's USB drive came into the Mother's possession. It is sufficient to state that after the Mother's version of the events was rejected by the court, the trial court could properly find that the USB drive was illegally obtained by the Mother without the knowledge or consent of the Father.
In addition to a number of other things, the trial court entered an order disqualifying the petitioner's trial counsel.
While recognizing that disqualification of a party's chosen counsel is an extraordinary remedy that should be resorted to sparingly, disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party's counsel....Given the nature of the information obtained by the Firm from the USB drive, it cannot be reasonably disputed that an informational and tactical advantage was obtained by the Mother.
Finally, the court gave some advice to attorneys who might face similar issues:
For the benefit of other attorneys facing a similar dilemma, we note that the Florida Bar Commission on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue. If the client refuses to consent to disclosure, the attorney must withdraw from further representation.5 Fla. Bar Prof'l Ethics Comm., Formal Op. 07-1.
5- The attorney may also be required to advise his client to consult a criminal defense attorney.


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