UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LUIS A.

GARCIA SAZ, and wife, MARIA DEL ROCIO BURGOS GARCIA, Plaintiffs, vs. CHURCH OF SCIENTOLOGY RELIGIOUS TRUST; et al Defendants. ________________________________________/ CASE NO. 8:13-CV-220-T27 TBM

MOTION TO DISQUALIFY PLAINTIFFS COUNSEL AND CERTIFICATE OF COMPLIANCE WITH RULE 3.01(g)
Defendants, Church of Scientology Flag Service Organization, Inc. (Flag Church) and the Church of Scientology Flag Ship Service Organization, Inc. (Ship Church), by their undersigned counsel, move the Court for the entry of an order disqualifying plaintiffs counsel and prohibiting them from acting as plaintiffs counsel herein based upon a conflict of interest, and as grounds therefore submit the following memorandum.

MEMORANDUM
INTRODUCTION This motion is not brought lightly. It is brought to protect the integrity and fairness of the judicial process in this case. Irrefutable and compelling evidence demonstrates that plaintiffs counsel of record have associated and closely communicated with, as unnamed co-counsel, one Robert Johnson, who for over a decade represented several of the defendants on numerous matters, both transactional and litigation, that were substantially related indeed, often virtually identical to the issues, strategy and facts that arise in this case. It would be inconceivable that Johnson himself could, or would dare, act as counsel of record for plaintiffs, as plaintiffs

counsel all recognized when they did not list him as counsel of record in this case. But, under well-established authority, Johnsons lengthy experience and deep knowledge of defendants confidences, strategies, litigation and settlement policies and practices with respect to the very issues raised in this case, must, under the circumstances, be attributed to counsel of record, lest those very confidences be revealed to defendants irreparable prejudice. But that is not all. Plaintiffs counsel have retained and/or consulted with two former senior Church of Scientology officials Michael Rinder and Marty Rathbun who for many years were intimately involved in -- in fact, in most respects in charge of legal matters for the defendants, including matters substantially related to this litigation. These former officials not only engaged in ongoing extensive communications with the attorneys retained by defendants and other senior Scientology churches, but they also received numerous communications from such attorneys on such matters as how the churches should organize their affairs, implementation of the church policy of refunds for certain kinds of donations under specific circumstances, the legal strengths and weaknesses of church practices and positions, how to respond to intrusive discovery, and other matters of legal strategy and tactics, all on matters substantially related or identical to those that have been or will arise in this litigation. In short, plaintiffs counsel have proceeded in a highly risky, heedless and dubious manner with respect to the attorney-client privileged interests of the defendants, and have placed themselves in the position where they simply may not be permitted to go forward as counsel in this case. STATEMENT OF THE CASE A. The Claims and Issues in This Case

Plaintiffs are former long-term parishioners of the Scientology religion. They have sued to obtain refunds of donations they made to defendants. Specifically, plaintiffs seek return of three kinds of donations. First, plaintiffs seek to recover donations they made to defendant, CSRT, between 1998 and 2005 (Complaint 31), to support construction of the so-called Super Power building in Clearwater, Florida. Plaintiffs allege that they were fraudulently induced to contribute to the project by representations that CSRT needed the money to complete the project on an immediate basis, that the building was not then and still has not been completed, and that the contributions were diverted for other purposes. Id., 32-36, 86, and 93. Based on these allegations, plaintiffs have alleged counts against CSRT and Flag Church (on a theory of joint enterprise) for fraud (Counts I and III) and Unfair and Deceptive Trade Practices (Counts II and IV). These claims necessarily would involve issues concerning the religious purpose of the building, the planning and preparations for it, the process of obtaining the land, zoning and building approvals, fund raising, architectural planning, reasons for changes or alterations in plans, if any, financing, and necessity, scope and nature of discovery. Indeed, plaintiffs counsel publicly and inappropriately threatened at a press conference to engage in highly intrusive discovery into defendants financial information and even to seek, as a litigation tactic, at the very outset of the case, a deposition of the ecclesiastical leader of the Scientology religion, who holds no position with any of the defendants. Second, plaintiffs, alleging breach of contract, seek return of donations they made to Flag Church and Ship Church at unspecified times in contemplation of participating in auditing or training. See Complaint, 39-50, 104-109, and 110-115. The claims rest explicitly on what plaintiffs allege is the policy of the defendants. See, e.g., Complaint, 42, 43 (resting claim on

allegation that Defendants maintain a policy of returning funds); 42 (alleging Ship Church induced donations with the express understanding that they would be returned upon demand); 45 (resting claims on alleged Scientology principles of exchange); 107 and 113 (resting contract claims on alleged represent[ations] in [their] policy and publications). These claims necessarily would involve issues concerning the origin and substance of Scientology religious policy, including the specific Scientology Policy Directive of 1996 dealing with the issue, past practice and policy with respect to refund claims, Internal Revenue Service recognition that such donations qualify as tax deductible gifts under the IRC, Church practice and strategy with respect to earlier claims and litigation regarding such claims, and development and application of Scientology enrollment forms that set forth such policy and practice. Finally, plaintiffs seek return of donations they made to defendants IAS and USIMT from 1997-2007, to support humanitarian projects sponsored by those organizations (Complaint 5368). Plaintiffs allege that they made the donations based on representations that the money would be used to further those projects, but that the money contributed was not used for that purpose. Id., 69. These allegations form the basis for claims of fraud against defendants IAS and USIMT (Count VI); claims of fraud against defendants Flag Church and Ship Church on a theory of joint enterprise (Counts VIII and IX); and a claim for Unfair and Deceptive Trade Practices against IAS and USIMT (Count VII). Such claims necessarily would involve issues of attempts to engage in intrusive discovery of defendants humanitarian practices and financial records and accountings. Underlying all issues would be questions of the applicability of Scientologys internal justice procedures and arbitration, as discussed in the pending motion to compel arbitration, as

well as fundamental constitutional questions arising under the religion clauses of the First Amendment. B. Johnsons Attorney/Client Relationship with the Defendants.

Bob Johnson first started representing various Church of Scientology entities in 1983, and he represented them continuously through July, 1999. Johnson actively represented three of the defendants in this action: Flag Church, Ship Church and CSRT. He also has represented other Scientology churches. The attached declarations of Allan Cartwright (Exhibit A), Sarah Heller (Exhibit B), Glen Stilo (Exhibit C), Judy Fontana (Exhibit D) and Peter Mansell (Exhibit E) establish the relationship of Mr. Johnson with various Scientology entities, as well as the relationships of Mark Rathbun and Michael Rinder with the various Scientology entities. Johnson represented defendants with respect to every one of the issues and strategies raised in the instant litigation. Attachment 4 to the Mansell Dec. (Exhibit E) is a schedule entitled Robert E. Johnson Timeline of Involvement in Church Legal Matters, which details Johnsons intimate involvement with various Church legal matters, including 12 refund suits and 22 refund claims. Over the course of the 16 years, the various Church entities paid to Mr. Johnson in excess of $1,807,461.39 in fees and costs. With respect to the plaintiffs claims for refunds for donations to CSRT to support the construction of the Super Power and related buildings, the Stilo declaration demonstrates that Johnson was from the beginning intimately involved in the legal representation with respect to that project. He oversaw and participated in the purchase of the seventeen separate parcels of land that CSRT assembled for the project, advised on legal issues, consulted with tax and corporate attorneys, proposed the corporate set up for the acquisition, represented the Church at hearings about the project before the Clearwater City Council, resolved disputes with the

architects about delays in construction, re-drafted contracts, advised and wrote a 15 page memo on litigation that arose over the acquisition and construction and mediated the case to resolution, Johnson received extensive client briefings concerning issues relating to the timing for opening of the building, necessary ecclesiastical and staff precedents to any opening, and strategic issues regarding the timing of the opening of the building coinciding with other events and activities. (Stilo, Dec., Exhibit C 20. Moreover, Johnson represented CSRT in a dispute and threatened litigation involving a former parishioner seeking return of his donations to CSRT for the building and the Super Power project, for which he was briefed on factual, legal and corporate issues respecting CSRT, strategic considerations, and potential future policy issues respecting donations made to CSRT. Id., 21. Johnson was responsible for the settlement of that dispute, which raised factual disputes virtually identical to those in the instant case. Id. 1 Among plaintiffs claims against CSRT for their donations to the Super Power project is a claim under Count II arising under the Florida Unfair and Deceptive Trade Practices Act. (Plaintiffs allege a similar claim in Count VII against defendants IAS and USIMT for their donations to those defendants for humanitarian projects.) The purported application of the Unfair and Deceptive Trade Practices Act to religious organizations presents unique factual and legal issues, and Johnson was heavily involved in litigating those very issues in a case styled Samuel Williams, et al. v. Church of Scientology Flag Service Organization, Inc., et al., filed in 1992 in the Circuit Court of the Fifth Judicial Circuit in Lake County, Florida, and he filed a 32page memorandum on the subject in that action. (Fontana Dec., Exhibit D, Attachment 1). The declaration of Judy Fontana (Exhibit D, 6) explains Mr. Johnsons role in the Williams case.

In the current complaint, Garcias allegations about donations to CSRT for the Super Power project relate to matters that occurred during Johnsons active representation. See Complaint, 31(a) and (b).

Indeed, the Williams case involved claims virtually identical to the second kind of refund claim plaintiffs make here, involving donations plaintiffs made in anticipation of participating in Scientology religious services. As the Fontana declaration shows, the same issues, tactics and strategies are involved in the present case. As FSOs representative, Ms. Fontana spent perhaps hundreds of hours in oral and written communication with Mr. Johnson regarding this suit and the issues raised therein. Among those issues was a major dispute involving intrusive discovery demands made upon the Church, particularly with respect to financial records and assets. Ms. Fontana briefed Johnson in detail regarding the nature of Flag Churchs financial records concerning parishioner donations, and the positions that the Flag Church wanted or needed to take regarding discovery thereof. The case led to an important decision of the Florida Fifth District Court of Appeal imposing special limitations upon discovery of church financial information. Church of Scientology v. Williams, 671 So.2d 840 (Fla. 5th DCA 1996). The Williams case by no means was unique. As Ms. Fontana explains, Johnson

represented the Flag Church in at least nine other lawsuits seeking refunds and challenging the Scientology religious policy and procedures with respect to that matter. Mr. Johnsons services included filing pleadings, discovery, negotiation of settlements, and preparation of releases. He was extensively briefed on such subjects as settlement policy and strategy, arbitration policy, church doctrine with respect to refunds and internal dispute resolution, relationship among Scientology churches, entities, and ecclesiastical leadership, and discovery issues. Johnson also was consulted and briefed on the church enrollment form that informs parishioners of the refund policy and the exclusive procedure for requesting refunds, as well as the arbitration procedures set forth in those forms. The nature, meaning, validity, purpose and

origin of the forms is one of the central issues in this case, as shown by the pending motion to compel arbitration. As Ms. Fontana states (Exhibit D, 19): Another area in which Mr. Johnson was consulted by me and by other legal staff and executives of the Church which I observed, concerned the creation and application of a contractual form utilized by the Church for enrollment of Church parishioners in Church services. Over the years, legal issues have arisen respecting confidentiality of Scientology materials and counseling, and numerous other issues. Passages and elements in the enrollment forms were included with the intent to avoid future legal problems. The Church found it was important both for the Churchs protection and for the parishioners edification, to establish contractual understandings between parishioners and the Church. Thus, enrollment forms constituting parishioner acknowledgements, understandings, contracts, limitations, releases and other issues, evolved as situations occurred demonstrating the necessity of amending the enrollment forms. Mr. Johnson was carefully and fully briefed on such legal considerations respecting the issues in the enrollment forms. Why certain matters were included in the forms, what releases and acknowledgements were necessary and effective, and great detail concerning these forms was the subject of repeated consultation with Mr. Johnson. The Enrollment Agreements and the Churchs policies regarding handling of refund claims are essentially the same now as they were during the 16 years of Mr. Johnsons representation. Mr. Johnson was privy to all of the Churchs confidential information regarding its approach to discovery, its approach to defending these claims, and its general approach to litigation. The issues in this action are substantially related to all of the various refund matters that Mr. Johnson handled in his 16 years representing various Church entities. (Fontana Dec, Exhibit D, 14-18.) C. Johnson is Co-Counsel in This Case

On January 25, 2013, plaintiffs filed their Rule 7.1 Disclosure indicating that the law firm of GrayRobinson, P.A., of which Johnson is a member, might have an interest in the outcome of the litigation. It is now undisputed that GrayRobinsons interest arises because Johnson is acting as co-counsel in the case, although without filing an appearance, that he has been identified by plaintiffs as acting as a contact person for potential additional plaintiffs, and that

he is working with Ted Babbitt and he receives the public seeking the law firm [sic] services.2 (Mansell Dec., Exhibit E, 3-4, Attachments 1 and 2; Exhibit F, Declaration of Brian Culkin.) Johnsons role is significant. As described by Brian Culkin, a former Scientologist who was a putative plaintiff against Flag Church and other Scientology entities, he participated in a conference call with ten former Scientologists, together with Mike Rinder, a former Scientology official, and attorneys Tucker Byrd, Ted Babbitt and Robert Johnson, to discuss the proposed litigation. In paragraphs 14 and 15 of the Culkin declaration, Mr. Culkin swears (Exhibit F): Mike Rinder introduced Culkin to Robert Johnson to whom Culkin provided a lot of information about his experiences in the Church and answered Mr. Johnsons questions. Mr. Johnson thought Culkin had a good case, and in late 2012, Johnson had his secretary sent Culkin a retainer agreement. The retainer agreement was with three law firms: the Babbitt firm, the Weil firm and GrayRobinson. Mr. Culkin did not execute this retainer agreement or any other agreement with any of the law firms. Beginning in October, 2012, Mr. Culkin spoke with Mr. Johnson about 30 times on the telephone and received about 15 e-mails from him. Mr. Johnson became Culkins main contact person on the litigation team. Mr. Culkin described Mr. Johnson as a client manager and understood that the information given him would be shared with Messrs. Babbitt and Weil. Johnson had a good knowledge of the Churchs refund procedure and other internal policies such as the Churchs religious doctrine called Disconnection from suppressive persons.

At his press conference announcing this lawsuit, attorney Babbitt threatened to bring additional similar actions on behalf of other former Scientologists. (Exhibit E, Mansell Dec., 19.) Johnson acts as the contact person for such prospective additional plaintiffs, and Johnson and the putative plaintiffs apparently then participate in conference calls with Babbitt and other counsel of record to discuss facts and strategy.

In paragraph 19, Mr. Culkin swears: Robert Johnson and Mike Rinder both told me that if I filed a suit it was almost certain that my lawyers would be able to defeat a motion to dismiss based on First Amendment grounds that would be filed by the Church. It was my understanding that they were telling me this based on their experience having previously worked on Church legal matters including refunds. They told me that our side would get to take discovery which would include obtaining financial information from different Church entities (including Super Power and IAS), and taking the deposition of David Miscavige [the ecclesiastical leader of the religion] as one of the first actions. This strategy that Rinder and Johnson discussed with me is basically the same one that Mr. Babbitt announced at his press conference the day he filed the Garcia suit. D. Former Church Officials Rinder and Rathbuns Role in this Case

Mike Rinder and Marty Rathbun are former high Church officials who were removed from any positions of responsibility, and subsequently left the Church in 2007 and 2004 respectively. They have both turned against their former religion and appear to be bent on revenge against the Church and its current leadership. They have spread their hostility in various media forms on the Internet and in court filings. They appear to be intent on visiting as much harm as possible on the Church through whatever means. (Exhibit A, 21) For more than 25 years, Mike Rinder was a senior official of the Church of Scientology International (CSI), the senior management church of the Scientology religion. Rinder was a member of the Board of Directors from 1987-2007, and for many years was an executive over CSIs Legal Bureau. He had full access to CSIs corporate and litigation files. Between 1994 and 2001, he was the chief executive of the Office of Special Affairs, where he oversaw all legal matters and had extensive contacts with Church attorneys. Rinder was involved in the hiring of attorneys, including experts, in local and international religious affairs, corporations, taxation and intellectual property for exhaustive review of the then-existing international and

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ecclesiastical and corporate structure of the Scientology religion. (Exhibit A, Cartwright Dec., 7.) Once having been removed from his positions at CSI and left the Church, Rinder embarked on a campaign of organizing and encouraging numerous others to sue Scientology churches for refunds. According to Culkin, Rinder was actively organizing meetings of

potential plaintiffs, locating attorneys to represent them, connecting up the lawyers and the exmembers, organizing conference calls with the lawyers, and acting as the overall coordinator of what[Culkin]believed to be as many as 10 different lawsuits against the Church. (Exhibit F, Culkin Dec., 5.). Culkin alone had about 100 phone calls with and received 75 emails from Rinder about potential litigation. Rinder participated in numerous conference calls with

prospective plaintiffs and lawyers, and represented that he had experience in Scientology policy matters, and. . . that he was providing this advice based on his past experience in Church of Scientology legal affairs and having worked previously with attorneys representing the Church in dealing with a variety of Church legal affairs including its refund procedures. Id. It was Rinder who located the lawyers who brought this lawsuit, interviewed potential plaintiffs, and introduced them to the lawyers. It is more than a fair inference, which can be confirmed and developed through discovery, that Rinder is responsible for inducing the plaintiffs to file this lawsuit and for finding the attorneys to do so. A fair question, of course, will be what financial benefits Rinder has received and hopes to reap from his efforts. In January, 2012, Rinder filed a declaration in the prior, since-dismissed, state court version of this case, stating that for the vast majority of the time between 1982 and 2007, he was the most senior official responsible for all litigation and contract matters. He also swears that the enrollment agreements with the Garcias were the result of my work with in-house counsel

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for CSI, William T. Drescher, Esq.

Rinder swears that he discussed the subject of the

arbitration clause with Mr. Drescher at length. Rinder recites that Mr. Drescher (who is deceased and cannot respond) believed the arbitration clause was unenforceable, and Mr. Rinder then describes what he claims to be the Churchs litigation strategy. (Exhibit A, Cartwright Dec. Attachment 1.) It thus is clear that Rinder has been actively collaborating with the plaintiffs and their counsel in connection with the prosecution of their claim in state court and in this Court. For approximately 20 years, Marty Rathbun was a senior official involved with various entities related to the Church of Scientology. Rathbun left Church staff in 2004. Exhibit A outlines Mr. Rathbuns relationship to the Church of Scientology. Rathbun, according to his own affidavit filed in this matter, was employed by the RTC from March, 1987, until December, 2004, served on the Board of Directors, including as corporate President for many years, and served as the Inspector General of the Religious Technology Center (RTC) the senior-most body of the Church of Scientologys corporate and ecclesiastical hierarchy. For most of his career, Rathbun was also responsible for handling major legal actions. He worked with attorneys personally and worked on strategies, filings, declarations, affidavits, and was a deponent on numerous occasions. Rathbun knew many of the Churchs attorneys, the Churchs strengths and weaknesses, and knows virtually every major legal situation the Church has had to resolve. In particular, Rathbun himself claims to have played a central role in the administration of policies concerning monetary refunds and that he worked to formulate the enrollment forms at issue in this case, including the arbitration provisions. Rathbun Dec., 4, 6. Rathbun acknowledges that he consulted with counsel in carrying out these duties (id., 7), but conspicuously avoids reference to any specific attorney

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communications he received; when read together with Rinders declaration on the same subject, however, where Rinder also claims credit for creating the enrollment forms in the course of which he engaged in extensive attorney-client communications, it is manifest that Rathbun and Rinder received comprehensive attorney advice with respect to these and other matters, and that they have now passed on the essence of those communications about strategy and related matters to counsel in this and other cases. Rathbun was uniquely in possession of vast amounts of information protected by the attorney/client privilege. He was the principal or one of the principal liaisons between CSI, Flag Church and other Scientology churches, on the one hand, and attorneys representing such churches in both litigation and non-litigation matters, on the other. Because of that unique role, Rathbun had primary responsibility to find and to recover all relevant information and data that might be necessary, useful or appropriate for the attorneys to do their jobs effectively. Rathbun became an arm or agent of the attorneys in the same manner as would a paralegal, investigator or secretary. ARGUMENT The trial court has broad discretion in deciding motions for disqualification. Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 651, 654 (M.D. Fla. 1992), affd, 43 F.3d 1439 (11th Cir. 1995). Any doubt must be resolved in favor of disqualification. Id. Plaintiffs counsel must be disqualified from representing plaintiffs because their co-counsel, Robert Johnson, was defendants former attorney, and because of plaintiffs counsels current relationship with defendants former senior officials, Rinder and Rathbun. Mr. Johnsons

conflict-of-interest in representing plaintiffs against his former clients is imputed to his cocounsel and is sufficient to require their disqualification. Plaintiffs counsel should also be

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disqualified based upon the appearance of impropriety because they have access to defendants privileged and confidential information from defendants former attorney and senior officials.

I.

Plaintiffs Counsel Must be Disqualified Based Upon a Conflict-of-Interest Florida law applies a two-part test to determine whether an attorney should be

disqualified because of a conflict-of-interest. State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633 (Fla. 1991);Bochese v. Town of Ponce Inlet, 267 F.Supp.2d 1240, 1244 (M.D. Fla. 2003); Cox v. Am. Cast Iron Pipe Co., 847 F.2d 725 (11th Cir. 1988). The party seeking to disqualify opposing counsel must show: (1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship; and (2) the matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client. State Farm Mut. Auto. Ins. Co., 575 So. 2d at 633. To determine whether an attorney-client relationship exists, the focus is the subjective intent of the person seeking out the lawyer. Estate of Jones v. Beverly Health and Rehabilitation Serv., Inc., 68 F.Supp.2d 1304, 1309 (N.D. Fla. 1999). To determine whether a matter is the same or substantially related, the moving party must demonstrate the relationship between the subject matters, issues and causes of action of both the present and previous representations. Id. at 1310. The matters need only be akin to the present action in a way reasonable persons would understand as important to the issues involved. Id. In Estate of Jones, supra, the defendant, a nursing home, moved, pursuant to Florida Bar Rule 4-1.9, to disqualify the personal representatives counsel because of a conflict-of-interest. Id. at 1308. The former client of the personal representatives counsel was a subsidiary of the

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defendant. Id. at 1307. He represented the defendants subsidiary with respect to nursing home claims similar to the one at issue in the personal representatives complaint. Id. Upon leaving his prior firm, he joined a new firm where the personal representative was a current client. Id. at 1308. The court ordered disqualification finding an attorney-client relationship between the defendant and the personal representatives counsel. Id. at 1312. The court held that the matters were substantially related because the former counsel had knowledge of the defendants internal operating issues, corporate policies, defense posture and litigation tactics. Id. at 1310. An attorneys representation of a client can be so broad in scope that it, ipso facto, makes matters substantially related. See e.g., Madukwe v. Delaware State University, 552 F.Supp.2d 452, 458-463 (D. Del. 2008) (holding disqualified counsels representation of university was so broad in scope that counsel was disqualified from representing the plaintiff in a discrimination action against the university. Also holding, knowledge of this type of playbook information for example, what lines of attack to abandon and what lines to pursue, what settlements to accept and what offers to rejectis a basis for disqualification. (citations omitted)); Onebeacon Am. Ins. Co. v. Safeco Ins. Co., 2008 WL 4059836 (S.D. Ohio 2008) (holding counsels intimate familiarity with clients approach to litigation is basis to disqualify counsel); Colorpix Sys. Of Am. v. Broan Mfg. Co., Inc., 131 F.Supp.2d 331 (D. Conn. 2001) (holding disqualification is granted where attorney developed litigation strategy in prior similar lawsuits); Superguide Corp. v. Directv Enterprises, Inc., 141 F.Supp.2d 616 (W.D. NC 2001) (holding attorneys crucial knowledge of corporate clients course of conduct under licensing agreement basis for disqualification for conflict-of-interest); Cardona v. General Motors Corp., 942 F.Supp. 968 (D. NJ 1996) (holding disqualification is granted based on knowledge of former clients litigation strategy in Lemon Law case); R&D Muller, Ltd. v. Fontaines Auction Gallery, LLC,

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906 N.E.2d 356 (Mass. App. Ct. 2009) (holding even though considerable time had passed since attorney last represented former client, the attorneys had been exposed to confidential information that could be used to the [former clients] disadvantage in the present case.); Franzoni v. Hart Schaffner & Marx, 726 N.E.2d 719 (Ill. App. 2000) (holding disqualified counsels intimate involvement with employment matters while in-house counsel for corporation was sufficient basis for disqualification); City Nat. Bank v. Adams, 96 Cal.App.4th 315 (Cal. App. 2d 2002) (holding long-standing relationship between attorney and client sufficient for disqualification); Webb v. E.I. Du Pont De Nemours & Co., Inc., 811 F.Supp. 158 (D. Del. 1992) (granting motion to disqualify where former attorney prepared ERISA report at issue in lawsuit against former client); and Kenn Air Corp. v. Gainesville-Alachua Co. Regional Airport Authority, 593 So.2d 1219 (Fla. 1st DCA 1992) (holding long-standing relationship sufficient to establish counsel had switched sides). There is no dispute that Mr. Johnson had an attorney-client relationship with Church entities for a period of 16 years that gives rise to an irrefutable inference that confidences were exchanged. His representation of the Church entities was broad in scope and allowed him access to the Churchs litigation strategy playbook. There is also no dispute that Mr. Johnson represented Church entities with respect to matters that are substantially related to this action. He acted as the Churchs counsel for a total of 32 refund matters. Much like the cases cited herein, Mr. Johnson was privy to Church confidential information regarding refund practices and procedures as well as litigation strategy. Moreover, he was still actively representing the Church entities when some of the alleged events giving rise to plaintiffs lawsuit occurred. Mr. Johnsons confidential knowledge regarding the various Church entities, under the facts and circumstances present here, should be imputed to plaintiffs counsel of record and be

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the basis for their disqualification. Disqualification based on the imputation of a co-counsels conflict of interest to an attorney is required when the attorney, through his or her relationship with co-counsel, was in a position to receive relevant confidences regarding the party seeking disqualification. See Fund of Funds, LTD. v. Arthur Andersen, Co., 567 F.2d 225, 235 (2d Cir. 1977). See Zarco Supply Co. v. Bonnell, 658 So. 2d 151, 154 (Fla. 1st DCA 1995) (holding that for purposes of analysis under rule 4-1.10(b), the two firms may be viewed as one firm. Rule 4-1.10(b) governs imputed disqualifications). Once a party seeking disqualification shows either direct evidence of disclosure, which of course as a practical matter often is difficult or impossible to do, or, more commonly, that the former counsel has made substantial communications to his co-counsel or assisted closely in preparing the litigation, a rebuttable presumption arises that confidential information was shared. Polish Roman Catholic St. Stanislaus Parish v.

Hettenbach, 303 S.W.2d 591, 604 (Mo. App. 2010); In re American Home Products, Corp., 985 S.W.2d 68, 81 (Tex. 1998). See Paul R. Trasker & Alan H. Casper, Vicarious Disqualification of Co-Counsel Because of Taint, 1 Geo. J. Legal Ethics 155, 189 (Summer 1987). While the presumption theoretically may be overcome by proving the negative, that in fact no confidences were disclosed, Polish Roman Catholic St. Stanislaus Parish, 303 S.W.2d at 604, ultimately, as formulated by this court, while a conflict is not automatically imputed to co-counsel from a different law firm, a court will do so where there is more than a small actual risk of confidential information spreading from the primarily-conflicted attorney to the associating firm. Baybrook Homes, Inc. v. Banyan Const. & Dev., Inc., 991 F.Supp. 1440, 1445 (M.D. Fla. 1997) (emphasis added). It is clear from the facts that not only is there a rebuttable presumption that Johnson has transmitted confidential information to counsel of record, but that there is in fact far more than a

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small actual of risk that that is exactly what has happened. The facts show that Mr. Johnson is working intimately with plaintiffs counsel to prosecute this case and to solicit new clients. In fact, as stated on page 3, supra, Mr. Culkin, a putative plaintiff with a prospective refund claim against defendants was tendered a retainer agreement with plaintiffs counsel of record and Mr. Johnson. The facts show that Mr. Johnson was acting as case manager. He conveyed to putative clients his knowledge of litigation strategies and procedures against defendants. He implied that the information would be communicated to counsel of record. Indeed, he

participated in conference calls with counsel of record in which the facts and strategy of the prospective case were discussed. His interest in this case was disclosed in plaintiffs Certificate of Interested Parties. Because it appears that Mr. Johnson and plaintiffs counsel of record worked closely together to bring this lawsuit, it is illogical to assume that they have not exchanged confidential information. Zarco Supply Co., 658 So. 2d at 155 n. 2. As such, plaintiffs counsel must be disqualified in this case. Moreover, if the Court retains any questions about the extent of Johnsons communications and participation with counsel of record in matters relating to this lawsuit, the court should order limited discovery to proceed on that question only, followed by an evidentiary hearing. School Board of Broward County v. Polera Building Corp., 722 So.2d 971, 974 (4th DCA 1999) (Evidentiary hearing required before denial of motion to disqualify counsel where issue of fact exists; discovery should be considered in light of the requirement that an evidentiary hearing must be held). II. Plaintiffs Counsel Must be Disqualified Based Upon the Appearance of Impropriety While plaintiffs counsel must be disqualified because of an actual, imputed conflict-ofinterest in representing the plaintiffs in a matter adverse to defendants, the appearance of 18

impropriety arising from their association with defendants former co-counsel and former senior officials also mandates disqualification. Norton v. Tallahassee Memorial Hospital, 689 F.2d 938 (11th Cir. 1982).3 The party seeking to disqualify opposing counsel based upon the appearance of impropriety must show: (1) although proof of actual wrongdoing is not required, there must exist a reasonable possibility that some specifically identifiable impropriety did in fact occur, and that (2) the likelihood of public suspicion or obloquy must outweigh the social interests that will be served by the attorneys continued participation in the case. Norton, 689 F.2d at 941; see also Rentclub, Inc., 811 F.Supp. at 654 (M.D. Fla. 1992). Plaintiffs counsels affiliation with Mr. Johnson, defendants former attorney, and with Messrs. Rinder and Rathbun, defendants former senior officials, gives counsel an appearance of impropriety that merits disqualification. In Rentclub, Inc., the counter-plaintiff moved to

disqualify the counter-defendants counsel, because of counsels appearance of impropriety. Id. at 653-4. Counter-defendant hired a paid trial expert to assist in litigation. Id. at 653. The trial expert was a former officer of counter-plaintiff. Id. He was privy to confidential and proprietary information and documents belonging to the counter-plaintiff. Id. In addition, he was involved in communications regarding the counter-plaintiff and litigation substantially related to the lawsuit. Id. The court also held that the trial experts assertion that he was privy to management discussions regarding the counter-defendant and the events giving rise to the lawsuit was outcome determinative. Id. at 655. The court held that the law firm was disqualified

Canon 9 of Floridas former Model Code stated that a lawyer should avoid even the appearance of professional impropriety. Florida has since adopted the Model Rules that remove Canon 9 and the appearance of professional impropriety rule. While there has been a suggestion that the appearance of impropriety standard is outdated, Herrmann v. Gutterguard, Inc., 199 Fed.Appx. 745, 755 (11th Cir. 2006) (applying Georgia law), the Florida Supreme Court has held that we do not believe that a different standard applies because the specific admonition to avoid the appearance of impropriety does not appear in the Rules of Professional Conduct. State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630, 633 (Fla. 1991). This district continues to apply the Norton test. See e.g. Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 651, 654 (M.D. Fla. 1992), affd, 43 F.3d 1439 (11th Cir. 1995).

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because of the appearance of impropriety as a result of the firms association with the trial expert. Id. at 656-7. Much like Rentclub, Rinder and Rathbun were privy to privileged and confidential information and documents regarding defendants. Both were upper-level officials. Both were involved with all major litigation activity of the Church entities. Both worked, in conjunction with church attorneys, extensively on the formulation and development of refund policies, enrollment forms, and Scientology arbitration procedures, receiving attorney advice on such subjects. Both worked with Johnson when he represented various churches. It is undisputed that each of these former Church officials possessed highly confidential and privileged information belonging to the Church. It is clear that they are working intimately with plaintiffs counsel in the prosecution of this case such that there is the appearance of impropriety. Plaintiffs counsel in this action are receiving an unfair advantage against defendants and their disqualification is warranted. III. The Cases Upon Which Plaintiffs Counsel Purports to Rely are Inapposite Before filing this motion with the Court, the undersigned attorneys notified plaintiffs counsel of record and Robert Johnson of the present conflict issue. Plaintiffs counsel and Mr. Johnson cited four cases to defendants counsel. The cases are easily distinguished. First, with respect to the issue of Johnsons improper actions, Johnson refers to Morgan Stanley & Co., Inc. v. Solomon, 2009 WL 413519 (S.D. Fla. 2009), and Hernandez v. Royal Caribbean Cruises Ltd., 2010 WL 3522210 (S.D. Fla. 2010). The cases are similar to each other and different from this case, and neither saves Johnson or his co-counsel from the consequences of their actions. Both turned on the utter lack of similarity of the facts and circumstances of the prior litigation to the case in which disqualification was sought. Thus, in Solomon the court

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found that mere similarity in legal theories was not enough to justify disqualification, and that there is no evidence demonstrating that Mr. Solomon would be attacking his own legal work. Solomon, 2009 WL 413519 at *4; likewise in Hernandez the court found that the defendant failed to offer any proof that plaintiffs counsel represented defendant in a case involving similar facts. Hernandez, 2010 WL 3522210 at *4. Here, in contrast, defendants have submitted much more than general affidavits regarding Mr. Johnsons former representation, and defendants specifically identify the ways in which the current lawsuit is substantially related as a matter of facts and circumstances to the former representation. Indeed, defendants have shown that

Johnson was involved in numerous cases raising the same factual scenarios, the same strategic considerations, and the same confidences. Second, plaintiffs counsel of record assert that counsel is not prohibited from speaking with or contacting former employees regardless of whether such employees may have at one time had access to privileged attorney-client communications, citing H.B.A. Management, Inc. v. Estate of Schwartz, 693 So. 2d 541, 544 (Fla. 1997) and Natl. Assoc. for the Advancement of Colored People et al (NAACP) v. State of Fla., Dept. of Corrections, 122 F.Supp.2d 1335 (M.D. Fla. 2000). These cases are inapposite. The precise questions before each court were not disqualification because of violation of privilege, but the extent to which discovery from prior employees could be used to bind a party opponent. H.B.A. Management, Inc. 693 So. 2d at 544 (holding that the Florida Bar Rule regarding contacting parties that are represented by counsel is designed to preclude interviewing of employees who have authority to bind the corporation; the concern over binding the corporation does not exist with former employees who can no longer speak for or bind the corporation.); NAACP, 122 F.Supp. 2d at 1342 (holding statements

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of former employees of the Department may not later be used by the Plaintiffs against the Department as a binding admission). The two courts addressed the attorney-client privilege issue in dicta, but, contrary to the suggestion of plaintiffs counsel, did so in terms that clearly disapprove of the very conduct that counsel engaged in with Rinder and Rathbun. Thus, H.B.A. Management emphasized the caveats contained at the end of the [ABA and Florida Bar Ethics Opinions]4 and warned counsel that no inquiry can be made into any matters that are the subject of the attorney-client privilege. Id. Likewise, in NAACP, the court, in holding that plaintiffs counsel could conduct ex parte interviews with former rank and file employees of the Department of Correction, explained that there is no suggestion that former high ranking Department employees with privileged information are the target of the interviews but rather the target of the interviews is the rank and file correctional officers who may have seen or heard the conduct alleged in the complaint. Id. at 1340. In response to this concern, the court further held that Plaintiffs' counsel shall advise the former employee to avoid disclosure of privileged material. In the course of the interview, Plaintiffs' counsel shall not attempt to solicit privileged information and shall terminate the interview should it appear that the former employee may reveal privileged matters [(in addition to other safeguards outlined in the decision)]. Id. at 1341. The cautions and warnings expressed by the courts in the H.B.A. Management, Inc. and NAACP cases sadly are of little use in this case. The present case is before the Court on a motion to disqualify plaintiffs counsel based on confidential information already obtained. While the courts in H.B.A. and NAACP recognized the need to avoid inquiry into the corporate entities

Specifically, the ABA Opinion states that counsel must be careful not to seek to induce a former employee to violate the corporations attorney-client privilege. The Florida Bar Ethics opinion states the attorney should not inquire into matters that are within the corporations attorney-client privilege (e.g., asking a former manager to relate what he had told the corporations attorney concerning the subject matter of the representation).

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privileged and confidential matters, here, plaintiffs counsel have already conferred with former Church officials and counsel. The cat is already out of the bag. CONCLUSION For the foregoing reasons, plaintiffs motion to disqualify should be granted. Compliance with Local Rule 3.01(g) The undersigned certifies that he has conferred with plaintiffs counsel in a good-faith effort to resolve the issues raised by this motion and counsel for the parties have not been able to agree on the resolution of this motion. I HEREBY CERTIFY that on May 10, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: RONALD P. WEIL, ESQ., rpw@weillaw.net, and THEODORE BABBITT, ESQ., tedbabbitt@babbitt-johnson.com, attorney for plaintiffs.

/s/ F. Wallace Pope, Jr. F. Wallace Pope, Jr. Florida Bar No. 0124449 E-mail: wallyp@jpfirm.com Johnson, Pope, Bokor, Ruppel & Burns, LLP 911 Chestnut Street Clearwater, Florida 33757 Telephone: (727) 461-1818 Facsimile: (727) 462-0365 Counsel for FLAG CHURCH & SHIP CHURCH
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