Bilzin, Sumberg, Baena, Price & Axelrod partner José M. Ferrer. Photo: J. Albert Diaz/ALM

A Miami-Dade judge sanctioned litigator José M. Ferrer and his law firm Bilzin, Sumberg, Baena, Price & Axelrod for using confidential information they obtained without their opponents' knowledge.

Miami-Dade Circuit Judge Beatrice Butchko's 51-page order ruled Ferrer and the firm inappropriately received and used clandestinely made phone recordings as part of their litigation strategy in a business dispute between their client, plaintiff Harout Samra, and defendant Vicken Bedoyan.

The order found Ferrer and and the Bilzin Sumberg firm used the recordings as the basis of false and derogatory allegations against opposing counsel—Gunster shareholders Jonathan Kaskel and Angel Cortiñas.

Bilzin's client's opponent had moved to have Bilzin disqualified as counsel and sought sanctions against the firm. Bilzin voluntarily withdrew from the case when the motion was filed to avoid delaying the litigation. On the same day that Butchko ruled against Ferrer and Bilzin, Samra's new attorneys filed a pleading raising new allegations against the Gunster attorneys in the ongoing dispute. The motion purports the defendant's counsel perpetrated fraud on the court by submitting a fake judgment to bolster claims Bilzin's client has a criminal history. Butchko has yet to rule on that motion.

Meanwhile, the judge found that Ferrer and Bilzin are the ones who behaved unethically. According to the order, Samra's legal team gained possession of privileged communications between Bedoyan and Adma del Carmen Inchausti Mentala, the defendant's attorney-in-fact in Bolivia, as well as conversations Cortiñas and Kaskel had with Inchausti concerning their work on behalf of their client.

Ferrer and plaintiffs counsel said the recordings provided evidence the Gunster attorneys were assisting Bedoyan in a plot to frame Samra on child pornography charges in Bolivia to extort a settlement. They included four transcripts of alleged conversations between the Gunster lawyers and Bedoyan, alleging the documents provided proof of the plot.

Tactical advantage

The accusations against Kaskel and Cortiñas were first made in a sealed emergency motion in July 2018 to strike the defendants' pleadings. That motion claimed Ferrer first gain possession of the recordings about a month before he filed the emergency pleading.

The judge noted the weekslong gap that preceded the "emergency" motion to strike.

"They had privileged communications in their possession for nearly a month," Butchko wrote.

Plus, the judge found the exhibits attached to the Bilzin filing exonerated the Gunster attorneys.

"There is no mention in any of those communications of any involvement by Mr. Cortiñas or Mr. Kaskel about orchestrating, or conspiring to bring child pornography charges against (the) plaintiff," Butchko wrote.

Ferrer did not respond to requests for comment.

But Bilzin suggests it had no part in any wrongdoing, and instead accused its client's opponent of misconduct. The firm also pointed to a ruling by a predecessor judge, who had found in Bilzin's favor.

 

Privilege

The case involved a complex fact pattern that left Butchko to unravel whether the tapes constituted privileged attorney-client communication, because Bedoyan's adviser, Inchausti, was not licensed to practice law in Bolivia. The judge concluded that they were, partly because Bedoyan believed Inchausti was fully licensed to practice law at the time he held the discussions with her.

"Under well-established Florida law, the attorney-client privilege extends to intermediaries and agents of the attorney and of the client who facilitate rendition of legal services," Butchko ruled.

The judge concluded plaintiff lawyers at Bilzin "orchestrated these disclosures in bad faith and without factual basis in an attempt to gain a tactical advantage" in the litigation. She also noted the false allegations had damaged Cortiñas' and Kaskel's reputations and their professional credibility.

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Read the order:

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Cortiñas is co-chair of Gunster's appellate practice group and spent several years as a federal prosecutor. He was a judge on Florida's Third District Court of Appeal bench between 2005 and 2013.

"The court finds that the plaintiff's lawyers' improper review and use of protected attorney-client privileged communications led to unnecessary litigation, which, in turn, caused defendants and their attorneys to incur substantial attorneys' fees and costs to defend themselves from the attacks, as they prepared for the damages trial," Butchko found.

 

'Highly suspicious'

The case is Harout Samra v. Vicken Bedoyan in Miami-Dade Circuit Court's Complex Business Litigation Division. It involved multiple judges and allegations that Bedoyan's legal adviser had betrayed him.

It stemmed from a dispute in which Samra accused Bedoyan and several businesses of breaching an oral agreement and committing fraud in order to exclude the plaintiff from profits in a planned partnership. The amended complaint described Samra as "a self-employed business owner in the gold and diamond industry" and contended he "taught Bedoyan everything he knew from his 20+ years in gold and diamond wholesale."

But the defendants later filed a counter-claim, leveling similar breach-of-contract and fraud allegations at Samra.

Then in a twist, court filings allege Samra's attorney, Ferrer, claimed Bedoyan's own adviser, Inchausti, had betrayed her client by handing the recordings to the opposing side.

Inchausti "categorically denied that she ever recorded any conversations with Mr. Bedoyan or his Florida counsel," according to Bedoyan's pleading.

In the end, Butchko found the recordings "were illegally intercepted" and "highly suspicious under circumstances that should have alerted Mr. Ferrer not to use them."

"Mr. Ferrer's failure to immediately contact defendants' counsel was improper and a violation of Florida's laws and ethics rules," the judge said.

A footnote in the opinion pointed out that the defendants and their legal counsel did not seek to impose sanctions on Ferrer and the Bizlin firm under Florida law concerning the interception of wire, oral or electronic communications. Instead, the sanctions order was premised on bad-faith accusations against Cortiñas and Kaskel.

Bilzin gearing to appeal

Bilzin and Ferrer hired White & Case partner and former Florida Supreme Court Justice Raoul Cantero after the defense filed a motion to disqualify them from the case.

Cantero called Butchko's findings "legally and factually incorrect" and signaled his client's intent to challenge the order.

"After Bilzin Sumberg won the liability phase of the underlying trial, the firm's client learned of wrongdoing on the part of the defendant on the eve of the damages trial," Cantero said. "Bilzin Sumberg then raised questions about the defendant's misconduct before the court. In turn, the defendant sought to disqualify Bilzin Sumberg for bringing the misconduct to the court's attention, and sought sanctions."

Cantero also noted that a prior judge on the case—Miami-Dade Circuit Judge William Thomas, who recused himself, had denied Bedoyan's motion to disqualify and sanction the Bilzin attorneys. The Third District Court of Appeal upheld Thomas' order.

"After the case was transferred to Judge Butchko, she agreed to entertain the issue again," Cantero added. "We fundamentally disagree with the ruling in every respect. Bilzin Sumberg will pursue all appropriate remedies and expects to be fully vindicated on appeal."

Gunster attorneys, Cortiñas and Kaskel, declined to comment. Their co-counsel, Coral Gables attorney Gonzalo Dorta, joined the defense team in the wake of the allegations against the Gunster attorneys.

Dorta said he will remain on the case.

"It's a very challenging situation to be retained to deal with sanctions [and] motions that are directed against another colleague and the client that the colleague is representing," he said.

"There seems to be a reoccurring habit and practice in our legal profession of lawyers using sanction motions—and more particularly threats of Florida Bar reporting—as a strategic tactic, rather than focusing on trying the merits of the case," Dorta added. "Unfortunately this is a reoccurring practice that hopefully more trial judges will see through."

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