Fax machine. Photo credit: Son Gallery/Shutterstock.com

Florida's Third District Court of Appeal has declined to grant a petition for writ of certiorari to a Boca Raton law firm disqualified from representing a client in Miami-Dade Circuit Court.

The appellate court's order did not alleviate the situation faced by lawyers with the Shapiro, Blasi, Wasserman & Hermann firm, who were removed from representing defendant Terry Maley and his employer, New Jersey-based fire safety company Kidde Fire Trainers Inc., in a products liability suit.

The firm had been removed from the case by a trial court after it failed to disclose to the opposing side that it had received a document sent to it in error. Instead, court records show it got — and kept — a handwritten statement the plaintiff had meant to send his lawyers but accidentally had transmitted to the other side. Plaintiff Kevin McCrea had intended to fax interrogatory answers to his attorneys but inadvertently sent them to the defense in July 2013.

The Shapiro Blasi firm waited years before alerting opposing counsel to the error, according to court documents. Lead counsel for the defense, Stuart Weinstein, filed the appeal following Miami-Dade Circuit Judge Abby Cynamon's 16-page order against him and his firm, finding Weinstein had not complied with rules of professional conduct.

“The plaintiffs' counsel was unaware that the defendants had the handwritten answers until March 29, 2018, when defendants produced a copy of them with the materials that they intended to introduce at trial,” the judge said.

After McCrea's attorneys sent a letter arguing the answers constituted privileged information, a push and pull between the two parties ensued. Cynamon held in May 2018 that the plaintiff's answers were protected by attorney-client privilege and ordered the defense to destroy all but one copy to be stored in a secure location.

The judge's order disqualifying Weinstein and the Shapiro, Blasi, Wasserman & Hermann law firm found the defense did not handle the matter properly and had obtained an unfair informational advantage through the plaintiff's error.

Read the order of disqualification: 

“Upon learning that [the defense] had two sets of answers to the same interrogatories, one of which was hand-written and faxed, and one of which was typed and formally served, a reasonable attorney would have been put on notice that the handwritten answers were a draft and would have realized that they were like inadvertently sent,” the order said. “Therefore … when the defendants' counsel realized that they had the two versions of the interrogatory answers, they were required to notify the plaintiff's attorneys. They did not.”

Cynamon ruled Weinstein had failed to comply with regulations outlined in the Florida Rules of Civil Procedure concerning the inadvertent disclosure of privileged materials. “Both the content of the inadvertent disclosure in this case and the actions taken by the defendants' counsel, particularly their recalcitrance in rectifying the disclosure in accordance with the applicable rules, convince this court that there is a possibility than an unfair informational advantage was obtained,” the judge wrote. Cynamon added “disqualification of the entire firm is required,” in addition to ordering Weinstein's removal from the case.

In an emailed statement to the Daily Business Review, Weinstein said, “The Third DCA opinion denied certiorari relief. It does not make the decision final, or the final word.” He did not reply to requests for follow-up remarks.

McCrea, a lieutenant firefighter with Miami-Dade County Fire Rescue, filed suit against the defendants in 2013, alleging he suffered severe burns after a Kidde Fire Trainer product ignited during a safety course facilitated by defendant Maley in November 2011. The complaint contended Kidde were negligent for a design defect in the item and liable for McCrea's injuries.

McCrea's attorney is Dan Dolan, founding partner with Miami law firm Dolan Dobrinsky Rosenblum. He applauded Cynamon's “well-reasoned order” and said he was pleased with the Third DCA's decision not to hear the opposing counsel's appeal.

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