The Florida Supreme Court disagreed with a court-appointed referee's recommendation to admonish prominent attorney Philip M. Gerson and co-counsel Steven K. Hunter, instead imposed a harsher punishment, suspending both Miami attorneys for 30 days.

Miami-Dade Circuit Judge Michael Hanzman, who served as referee, found the attorneys violated one, not two, Florida Bar rules governing attorneys conflicts of interest involving current and former clients. He found the attorneys violated Florida Bar Rule 4-1.7, which governs conflicts with current clients, but not Rule 4-1.9, which deals with former clients.

“The case was—in the court's opinion—a proverbial black swan and outlier, both procedurally and substantively,” Hanzman wrote in his referee's report. “And while this court does not condone counsel's conduct, and finds that they exercised poor judgment, it concludes that given the totality of the circumstances presented, the sanction of 'admonishment' is  warranted and appropriate.”

The high court disagreed, and found the attorneys had violated both rules.

Gerson and Hunter had represented flight attendants in bringing suits as part of what has been called “Broin progeny” litigation, in the wake of Broin v. Philip Morris, a class action against tobacco companies over exposure to smoke in airline cabins, which was settled in 1997.

Broin was among the first class actions to hold cigarette companies companies accountable for smoking-related illnesses. It did not result in direct compensation for class members, but included a settlement agreement that required the tobacco companies to provide $300 million to a foundation dedicated  to scientific research about cigarette-related diseases.

That foundation, the Flight Attendant Medical Research Institute, later became part of the litigation. After individual suits against the tobacco defendants stalled, Gerson, Hunter and other attorneys sought to have the court monitor the Flight Attendant Medical Research Institute's expenses, and allocate a portion of the $300 million to flight attendants.

Two members of the foundation's board of trustees filed a motion to remove the attorneys from the case, claiming the lawyers acted against current and former clients' best interests. They said some clients had objected to attorneys' petition, and had  not provided informed consent.

“While respondents forcefully deny these charges, this case — like many brought by the bar — is far from nascent, arriving with a highly unusual, lengthy and tangled history,” Hanzman wrote.

The Florida Bar started disciplinary action. It accused Hunter and Gerson of violating Florida Bar Rules 4-1.7 and 4-1.9, which deal with conflicts of interest in representing current and former clients, respectively.

Miami-Dade Circuit Judge Jerald Bagley granted the foundation trustees' motion to disqualify the attorneys, after finding a conflict of interests.

Hunter and Gerson challenged the ruling, but the other attorneys did not seek appellate review. They filed a petition for certiorari in the Third District Court of Appeal, which quashed the disqualification order.

The appellate panel found the case presented “a common dilemma,” in which a minority of class members disagree with the legal strategy. It also found the bar rule inadequate in addressing this issue.

But the Florida Supreme Court reversed the state appellate panel,and upheld Bagley's ruling.

More bad news for Hunter and Gerson from the high court: Justices also sided the bar in its ethics case.

“The court disapproves the referee's recommended discipline and instead imposes 30 days' suspensions from the practice of law,” it ruled on April 11.

Hunter and his attorney Christopher Lynch did not respond to a request for comment by press time. Public records indicate he notified the court on April 12 that he was no longer practicing law.

Gerson has been a member of the bar since 1970 and served on its committees over the years. He has stepped away for his practice, and intends to return when the suspension expires. His attorney, David Pollack of Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami, said the ruling disappointed the long-time attorney.

“It's just a shame that 40 years on, he has this one blight on his not just spotless ethical record, but his record of service to the bar and the broader community,” Pollack said.

Gerson, in an email to Daily Business Review, said “if readers want more information they should read the report of the referee, Hon. Michael Hanzman.”