Florida Record

Sunday, March 29, 2020

Appeals court won't permit lawyer to represent former client in new suit

State Court

By Charmaine Little | Nov 29, 2019


MIAMI -- A group of petitioners’ attempt to disqualify a lawyer from representing respondents was granted Nov. 6 in the Florida Third District Court of Appeal.

Petitioners Francisco Arcena Blamey and Above Ground Level Aerospace Corp. (AGL) filed a writ of certiorari, asking the appeals court to quash a lower court’s ruling that denied their request to deny their motion that would disqualify an attorney, Stephen J. Kolski, who was representing Juan Menadier and A Professional Aviation Services Corp.

The appeals court pointed out that Rule 4-1.9(a) reads, “A lawyer who has formerly represented a client in a matter must not afterward 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.”

Justice Thomas Logue

While the lower court ruled there was not a substantial similarity for the representation, the appeals court disagreed.

It pointed out that the entire lawsuit is based on the idea that Aracena did not keep his end of the bargain in giving Menadier half of AGL’s stock. Kolski was AGl’s lawyer in creating the term sheet in question ahead of the dispute. The appeals court deemed Menadier’s decision to use Kolski as his counsel as a conflict of interest.

“Because Kolski’s prior work for AGL in drawing up the term sheet for the transfer is substantially related to the current lawsuit over the failure to consummate the transfer, Kolski is disqualified from suing his past client, AGL,” the appeals court ruled.

Menadier created his own business while managing AGL, which was owned by Aracena at the time. Menadier said Aracena verbally conceded to giving him half of the AGL stock. Talks between Menadier and Aracena hit a turning point in October 2018. Prior to that meeting, Menadier requested Kolski to create a term sheet that outlined the ownership interest and corporate entities and the people that were included in the deal. Some concerns were to be settled at the meeting.

After AGL was created, Menadier retained Kolski as its lawyer. Menadier was also the main contact for Kolski as a preresentative of AGL.

As for the term sheet, Kolski invoiced Menadier’s company for it and, in turn, sent the bill to AGL’s accounting department, stating it was a mistake. He also said that he always sent Kolski’s bills to AGL’s accounting department. However, Menadier was fired at the contentious meeting. Menadier and his business sued, and Kolski represented them.

Aracena and AGl wanted Kolski disqualified from representing Menadier and his corporation. While the lower court denied that motion, the appeals court reversed and granted it.

Justice Thomas Logue wrote the opinion. Justices Norma S. Lindsey and Fleur Lobree concurred.

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Florida Third District Court of Appeal