When a case comes to trial, emotions can frequently run high on both sides. However, it is important to remain professional in all of your dealings with anyone involved in the case, particularly for a lawyer representing one of the parties. Richard Celler and Stacey Schulman of Morgan & Morgan recently learned this the hard way in their case representing Emigdio Bedoya against Aventura Limousine. Mr. Coupal, representing Avenutra, asked the court to disqualify the plaintiff’s counsel for alleged violations of Florida Bar Rules.
The Florida Bar Rules forbid a lawyer from communicating about the subject of legal representation with any person the lawyer knows to be represented by another lawyer in the matter discussed, unless she has the consent of the other lawyer. This is prohibited communication is known as ex parte communication.
Mr. Celler allegedly broke this rule when he approached Mr. Tinkler, one of the defendants, during a break in testimony, and said, “Scott, you are a big firm and you can afford better representation than Mr. Coupal” and that Celler could never settle if Mr. Coupal remained as defense counsel. Celler does not deny that this conversation took place, although he does claim that it was not truly an ex parte communication, as it was no more than “a ten-second exchange” and occurred in full view of Mr. Coupal.
However, according to the Court’s decision the evidence suggests otherwise. In an email exchange with Coupal after the deposition, Celler remarked: “We are not interested, nor are our clients, in settlement discussions with you as long as you are the lawyer on the other side. You are causing your client a great disservice. If you were not on the other side of the table, we would have a better chance of any resolution and would sit with the principals of the company. I have told Scott Tinkler this. … Time to put your boots on and get to work. No more whining, no more complaining about how you have no support staff, no more complaining about how much work you have to do. Nobody on this side of the internet cares.”
When asked if Celler’s ex parte communication with him had negatively affected his relationship with Mr. Coupal, Tinkler replied “when Mr. Coupal came to me regarding the communication, he was extremely upset and he asked me if Mr. Celler has said anything to me about him, and I said yes, and I basically explained exactly what he said … It has caused a lot of angst between Mr. Coupal and I and I don’t know if it is reparable.”
Celler tried to claim that, since all of this occurred in the context of another case, it has no bearing on the case currently before the court. The judge disagreed however, and found that Celler’s attitude toward Coupal did have bearing on the current case and that there was evidence to show that Celler has not shown good faith in his efforts to settle with Coupal in the present case. The judge therefore decided that remedy for the harmful statements was warranted.
Schulman and Celler also allegedly acted questionably in the matter of Michael Goetz, a former training manager at Aventura who considered himself retired and free to work for Aventura or any other company he chose. He did occasionally work as a greeter for Aventura under the title of independent contractor. Allegedly, Schulman telephoned Goetz and told him to come in to her office for a deposition. When he arrived at her office, instead of holding a deposition, Schulman allegedly discussed the substance of the action against Aventura with him and goaded him into signing an affidavit which was supposedly untrue. Goetz testified that, when he arrived at Morgan & Morgan he met with Schulman, Celler, and a third attorney, that he was not represented by any counsel at the time of this meeting, and that he went back to Celler’s law firm Morgan & Morgan several times to review and sign the affidavit.
After Goetz’s meetings at Morgan & Morgan, Coupal wrote to Celler, saying that he was aware of the meeting they had held with Goetz, that Ms. Schulman was aware that Goetz retained tied to Aventura and that their “interview” may have invaded the attorney-client privilege. He then suggested that they refrain from further ex parte contact with Goetz until the arbitrator or another adjudicative body could determine whether their contact with Goetz was ethically appropriate. Celler responded, “You are wrong on all of this. Goetz is an independent … I will meet with Goetz when I want. He is not an employee, he is a former employee.” Schulman was copied in at least some, if not all of these emails. The judge found that the contacts with Goetz supported Celler’s disqualification, and also established grounds for disqualifying Schulman.
Celler used Goetz’s signed affidavit in his client’s motion for conditional collective action certification. In the affidavit, Goetz describes his previous work at Aventura as Director of Training. Goetz discusses the booking practices, compensation, uniform policy, insurance policy, and communication policy applicable to Aventura drivers. Celler tried to claim that this affidavit has no bearing on the current case but, since used the affidavit in the current case, the judge failed to see how Celler could make this claim.
According to the Florida Bar Rules, a lawyer shall not “disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristics.”
Numerous alleged instances of Mr. Celler engaging in this sort of conduct have been put before the court. Most notably, the e-mail to Mr. Coupal after the ex parte communication with Tinkler. In addition, Tinkler testified that he witnessed Mr. Celler “drawing photos of – pictures of male genitalia and showing them to Ms. Schulman, describing Mr. Coupal” and playing the game Angry Birds during depositions. Celler also wore shorts and a t-shirt to depositions allegedly in order to gain a “psychological advantage” and chose Dunkin’ Donuts as the location for depositions, a venue which Tinkler says was noisy, distracting, and lacking in privacy.
Ordinarily, ex parte communications would not be sufficient cause for disqualification. However, the judge decided that, since there was testimony that Celler’s comments caused irreparable harm to Mr. Coupal’s relationship with his client, “the only proper remedy is Celler’s disqualification.” The judge further found that the various instances in which Celler disparaged Coupal in front of Coupal’s clients and generally acted with such flagrant disrespect shows that the ex parte contact with Tinkler was merely one element of a consistent course of disrespectful, unprofessional conduct on Celler’s part.
The motion to disqualify the law firm Morgan & Morgan has also been granted, given that Mr. Celler is the managing partner of the labor and employment division at Morgan & Morgan and all of the attorneys in the practice report directly to him.
You can read the Court’s opinion here to see its complete reasons for disqualifying the Morgan & Morgan lawyers.