NEALY v. WARNER CHAPPELL MUSIC INC (2024)

ORDER GRANTING PLAINTIFFS’ MOTION FOR DISQUALIFICATION

THIS CAUSE comes before the Court upon Plaintiffs’ Motion for Disqualification of Counsel for APG (“Motion”), [ECF No. 352]; Defendant Artist Publishing Group, LLC's (“APG”) Response to Plaintiffs’ Motion (“Response”), [ECF No. 357]; and Plaintiffs’ Reply Memorandum in Support of Their Motion, [ECF No. 360]. Having reviewed these submissions, the record, and being otherwise fully advised, it is hereby

ORDERED AND ADJUDGED that Plaintiffs’ Motion, [ECF No. 352], is GRANTED for the reasons set forth herein.

BACKGROUND 1

The parties in this case dispute who owned the copyrights at issue. Mot. at 1. While Plaintiffs claim that they were the proper owners of the copyrights, Defendants claim that Plaintiffs merely registered the copyrights that are in actuality owned by MSP and non-party Tony Butler (“Butler”). Mot. at 1. However, this is not the first instance of litigation dealing with the proper ownership of these copyrights. Id. Mr. Garfield Baker (“Baker”), corporate representative for Plaintiff Music Specialists, Inc. (“MSI”), and Butler were previously witnesses in those lawsuits. Id. And, as is key here, Baker and Butler were previously represented by Richard Wolfe (“Wolfe”), current counsel for APG in the present lawsuit. Id.

In 1987, Wolfe represented Baker in forming a corporation called “Hit Squad Productions.” Mot., Ex-D, [ECF No. 352-4], Declaration of Garfield Baker (“Baker Decl.”) ¶ 2. At the time, “and for years as that company did business” Wolfe represented Baker “as an attorney in [Baker's] endeavors in the music business ․ which included many discussions concerning copyrighting how they [sic] work, and including MSI because [Baker] had [sic] an employee of MSI.” Id. ¶¶ 3–4. Over the years, Wolfe represented Baker in several business dealings which included discussions regarding Baker's belief that other entities were “exploiting the musical compositions of Music Specialists Inc.” Id. ¶ 6. Additionally, Wolfe represented Butler in a 2009 case before the Honorable Federico A. Moreno in which the same copyrights were at issue as the present case. Reply at 6. Indeed, APG's counterclaim in the present case quotes from those very same copyright documents. See [ECF No. 14].

Because Baker is a witness and a corporate representative for Plaintiff MSI in this present case, and because Baker “discussed these MSI ownership issues with [Wolfe],” Baker now “feel[s] intimidated that [Wolfe] would be a lawyer for APG adverse to [Baker] and MSI who is going to cross examine [Baker].” Id. ¶ 8. Wolfe did not seek, and Baker did not give, any waiver of conflict prior to representing APG. Id. ¶ 10. Plaintiffs argue that these facts require disqualification of Wolfe under Rule Regulating The Florida Bar 4–1.9.² As discussed in further detail below, the Court agrees.

LEGAL STANDARD

“The party bringing the motion to disqualify bears the burden of proving the grounds for disqualification.” Perez v. City of Hialeah, 526 F. Supp. 3d 1304, 1312 (S.D. Fla. 2020) (internal quotation marks omitted) (quoting Herrmann v. GutterGuard, Inc., 199 F. App'x 745, 751 (11th Cir. 2006) (citing In re BellSouth Corp., 334 F.3d 941, 961 (11th Cir. 2003))). While “a party is presumptively entitled to the counsel of his choice, that right may be overridden [ ] if [a] compelling reason[ ] exist[s].” In re BellSouth, 334 F.3d at 961 (internal quotation marks and citations omitted). In other words, one's right to the counsel of their choice does not equate to an absolute freedom of said choice: “[counsel] must not have a conflict of interest with another party.” McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1262 (5th Cir. 1983).

“Motions to disqualify are governed by two sources of authority. First, attorneys are bound by the local rules of the court in which they appear ․ Second, federal common law also governs attorneys’ professional conduct because motions to disqualify are substantive motions affecting the rights of parties.” Herrmann, 199 F. App'x at 752. The pertinent part of S.D. Fla. Local Rule 11.1(c) provides that “[t]he standards of professional conduct of members of the Bar of this Court shall include the current Rules Regulating The Florida Bar.” Consequently, Florida law states, “[a]n order involving the disqualification of counsel must be tested against the standards imposed by the Rules of Professional Conduct.” Bedoya v. Aventura Limousine & Transp. Service, Inc., No. 11-24432, 2012 WL 1534488, at *1 (S.D. Fla. Apr. 30, 2012) (quoting Morse v. Clark, 890 So. 2d 496, 497 (Fla. 5th DCA 2004) (citing City of Lauderdale Lakes v. Enter. Leasing Co., 654 So. 2d 645 (Fla. 4th DCA 1995))).

With that in mind, Florida Bar Rule 4–1.9 provides:

A lawyer who has formerly represented a client in a matter must not afterwards:

(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent;

(b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known․”

R. Regulating the Fla. Bar 4–1.9 (emphasis added). The Comment to Rule 4–1.9 states that “[m]atters are ‘substantially related’ for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the client.” Id.

In interpreting Rule 4–1.9, Florida courts have concluded that, to succeed on a motion for disqualification under the rule, the movant must establish: “(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 Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633 (Fla. 1991) (emphases added) (citing Ford v. Piper Aircraft Corp., 436 So. 2d 305, 305 (Fla. 5th DCA 1983); Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051, 1051 (Fla. 5th DCA 1979)).

ANALYSIS

The Court begins the analysis with the first step: whether there was an attorney-client relationship thereby giving rise to an irrefutable presumption that confidences were disclosed. See Ford, 436 So. 2d at 305. APG argues, without citation in support, that Baker “would have to show more than a minor and casual relationship between general business advise [sic] given to Baker to the issues of this case and how knowledge of (the matters disclosed with Baker 37 years ago) somehow now gives APG a tactical advantage in THIS case.” Resp. at 6. However, that is not the standard imposed by applicable Florida law. See State Farm Auto. Ins. Co., 575 So. 2d at 633 (holding that the existence of an attorney client relationship gives “rise to an irrefutable presumption that confidences were disclosed during the relationship.”). Given that APG has failed to dispute that Wolfe represented Baker and Butler, the first step of the analysis is easily satisfied.

Next, the Court must determine whether the current adverse representation is “substantially related to” the prior representation. Id. Rule 4–1.9 explains that “[m]atters are ‘substantially related’ for purposes of this rule if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the client.” R. Regulating the Fla. Bar 4–1.9.

Plaintiffs argue that Wolfe's 2009 representation of Butler concerning copyright ownership is substantially related to this case as evidenced by the fact that Wolfe quotes from those copyright registrations in his counterclaims, [ECF No. 14]. Reply at 6. Plaintiffs further argue that Wolfe's current representation of APG will likely involve Wolfe attacking work he performed for Butler “because Butler has taken contradictory positions concerning ownership (while represented by Mr. Wolfe).” Id. Defendant responds, again without citation, only that Baker is a non-material witness such that “APG and Wolfe had no plans to cross examine him” and counsel for Warner Chappell will be handling any cross-examination. Resp. at 3.

However, APG does not provide, and the Court is not aware of, any case law suggesting that the protections of the attorney-client relationship can be subverted by a handshake deal between co-defendants to have a different lawyer perform a specific cross examination. Moreover, it appears that the 2009 copyright case, as well as potentially other representations over the last several decades, is substantially related to this litigation because it involves the validity of the same or related copyrights and could disadvantage Baker and MSI as a result. Reply at 6. Indeed, APG does not attempt to distinguish between the copyrights at issue in the 2009 case and the copyrights at issue now. Accordingly, the Court finds that Plaintiffs have met their burden in establishing that disqualification, while an extraordinary remedy, is appropriate here. See ASI Holding Co. v. Royal Beach & Golf Resorts, LLC, 163 So. 3d 668, 671 (Fla. 1st DCA 2015) (remanding for disqualification of law firm that counseled former client ten years earlier; “this case not only involves the same ‘type’ of representation (i.e., breach of contract), but would have [former firm] attacking the validity of the very document that it had previously represented to be valid and legally binding.”).

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Disqualification of Counsel for APG (“Motion”), [ECF No. 352], is GRANTED. APG shall retain new counsel, and new counsel shall file a notice of appearance on or before July 26, 2024.

DONE AND ORDERED in Miami, Florida, this 22nd day of July, 2024.

FOOTNOTES

2.   The Court notes that Plaintiffs originally raised a second argument that Wolfe should also be disqualified under Rule 4–3.7(a). Mot. at 9. However, as APG correctly points out, Rule 4–3.7(a) requires disqualification of Wolfe only if Wolfe is testifying on behalf of his own client. “[T]he rule requiring a lawyer to withdraw when he expects to be a witness in a case was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.” See Arcara v. Philip M. Warren, P.A., 574 So. 2d 325, 326 (Fla. 4th DCA 1991). As Plaintiffs abandon this ill-fated argument in their Reply, see generally Reply, the Court will address it no further.

RODOLFO A. RUIZ II, UNITED STATES DISTRICT JUDGE