Miami-Dade Circuit Judge Beatrice Butchko. Photo: J. Albert Diaz/ALM.

The Third District Court of Appeal has agreed to remove Miami-Dade Circuit Judge Beatrice Butchko from three cases over concerns from Miami firm Bilzin Sumberg Baena Price & Axelrod.

Bilzin Sumberg raised concerns that some of the parties wouldn't receive a fair trial, in light of a sanctions order against the firm in an unrelated case.

The firm represents the plaintiff in two of the lawsuits, and is a defendant in the third.

But in a separate case, Butchko wrote a 51-page order in September, sanctioning Bilzin Sumberg attorney Jose M. Ferrer and his firm for allegedly using confidential information obtained via secret phone recordings without their opponents' knowledge.

Bilzin Sumberg has denied any wrongdoing.

But according to the order, Ferrer and his team used the recordings to launch false and derogatory allegations against opposing counsel, Gunster shareholders Jonathan Kaskel and Angel Cortiñas.

The ruling also implicated the firm's general counsel, who is a witness in one of the cases at issue, according to Wednesday's opinion.

Related story: Bilzin Sumberg Partner Sanctioned for Allegations Against Gunster Shareholders

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Well-founded fears?

That, Bilzin Sumberg argued, meant Butchko wouldn't be an impartial arbiter in the other three cases in which the firm was involved.

But Butchko disagreed.

On appeal, the Third DCA had to decide whether those fears about an unfair trial were well-founded.

And they were, according to the opinion, which consolidated all three cases. The panel found that even though adverse rulings aren't usually enough to show bias, it was enough to show that a party or attorney was perceived to have lied or lost credibility in a case before Butchko.

Judges are bound by a strict code of ethics that says even perceived bias can warrant disqualification.

The panel was careful to note that its ruling didn't mean Butchko was biased, pointing to case law that said, "Such a fear rests in the mind of the litigant and if the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there."

Third DCA Judge Bronwyn Miller wrote the opinion, with Judges Thomas Logue and Fleur Lobree concurring. The panel granted Bilzin Sumberg a writ of prohibition in the consolidated case to prevent Butchko from continuing to preside over the cases. But it stopped short of issuing a formal order, commenting that "we are confident the trial judge will abide by the decision."

Robert Zarco of Zarco Einhorn Salwoski & Brito represents the opposing party, former Miami firm Cantor & Webb, formerly The Cantor Group, which sold its practice to Bilzin Sumberg. Its lawsuit alleges a former partner attempted to collect $2 million in life insurance proceeds after named partner Steven Cantor killed himself.

"It is unfortunate to lose Judge Butchko in this case, considering her thorough knowledge of the facts and details, which have been thoroughly argued through many, many hearings before the court," Zarco said. "But we have great confidence in any judge that will replace Judge Butchko to see the facts and the law consistent with how the plaintiff sees it."

Alan Fein and Jenea Reed of Stearns Weaver Miller Weissler Alhadeff & Sitterson represent CFLB Partnership, a defendant in two of the cases. They did not respond to a request for comment by deadline.

Another recusal?

Ferrer and Bilzin Sumberg declined to comment.

But the firm has claimed it intends to appeal Butchko's September sanctions order, which it says is "legally and factually incorrect." It came after Miami-Dade Circuit Judge William Thomas recused himself from the case, and he had previously denied a motion for sanctions against Ferrer and the firm.

In that case, new attorneys for Bilzin's former client have filed a similar petition for writ of prohibition against Butchko, which is still pending before the Third DCA. Defense attorneys at Gunster moved to withdraw from the case on Oct. 31.

Read the ruling:

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