SARNOFF v. WELCH / No.13-33667-FC-04 ‘ORDER DENYING RESPONDENT'S VERIF D MOTION TO DISQUALIFY GEORGE WYSCNG, £5, IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA MARC SARNOFF, CASE NO: 11-33667-FC-04 Petitioner JUDGE: MULTACK Vs. REID WELCH, Respondent ul ORDER DENYING RESPONDENT'S VERIFIED MOTION ‘TO DISQUALIFY GEORGE WYSONG, ESQUIRE This matter concerns that of Petitioner Marc Sarnoff, who has alleged through affidavit that Respondent, Reid Welch, has engaged in a course of conduct necessitating a protective order against repeat violence pursuant to Florida Statutes Section 784.046. The Petitioner alleges that the Respondent has frequently visited his home, video-taped his home, removed property from his home, sent over one hundred emails to his email address at the City of Miami, approached him in public, and left voice messages for him at his employment at the of Miami. The Respondent, Reid Welch, has requested this Court to attorney, George Wysong, an Assistant City Attorney, from representing Marc Sarnoff. Marc Sarnoff is a City of Miami Commissioner for District 2. The Respondent states, as a legal basis for the disqualification, that a conflict of interest exists in violation of Florida Rule of Professional Conduct 4-1.7, between potential police officer witnesses for the Respondent and the relationship the Assistant City Attorney has with the City of Miami Police Department. Additionally, the Respondent believes that the Assistant City Attorney may possess undue 1‘SARNOFF v. WELCH / No.11-33667-FC-04 ‘ORDER DENYING RESPONDENT'S VERIFIED MOTION TO DISQUALIFY GEORGE WYSONG, ESQ influence over the Respondent's potential witnesses and that due to his position, the Assistant City Attorney has the ability to interfere with the Respondent's preparation for trial. The Respondent also submits an objection to the representation of the Petitioner in what is 2 “private matter” by the Office of the City attorney. On December 23, 2011 this Court heard from both the Petitioner's attorney and Respondent's attorney with regards to the disqualification issues. This Court has reviewed the sworn Motion to Disqualify George Wysong, Esquire, the complaint of the Petitioner, and heard argument and testimony at the hearing’. This Court now makes the following findi 1, Mare Sarnoff isa sitting City of Miami Commissioner for District 2. 2. George Wysong is employed as an Assistant City Attorney and is representing Marc ‘Sarnoff in his capacity as an Assistant City Attorney 3. George Wysong, in his capacity as an Assistant City Attorney, is one of the legal advisors to the City of Miami Police Department and advises the Chief of Police on issues of public safety, liability, and police procedures. 4. The two potential witnesses for the Respondent, Officer Lee and Officer Suero, are employed by the City of Miami Police Department. 5. Neither Petitioner nor Respondent has communicated with either Officer Lee or Officer Suero regarding the matter before this Court. 6. George Wysong has never represented Officer Lee or Officer Suero in his capacity as an Assistant City Attorney. 7. Officer Lee and Officer Suero are not witnesses that will be called by the Petitioner to substantiate the underlying allegations to the petition. The crux of the legal issue to be evaluated is whether or not the relationship, between George Wysong as an Assistant City Attorney and the potential witnesses for the Respondent, is ‘one which necessitates disqualification pursuant to Florida Rules of Professional Conduct The only “testimony” came from attorney George Wysong, No witnesses were called by the Respondent.SARNOFF v. WELCH /'No.11.33667-FC-04 ‘ORDER DENYING RESPONDENT'S VERIFIED MOTION TO DISQUALIFY GEORGE WYSONG, ESQ. (FRPrC) 4-1.7°. As frequently stated in the body of authority surrounding this issue, “Disqualification of a party's chosen counsel is an extraordinary remedy and should only be resorted to sparingly,” Singer Island Ltd. v. Budget Construction 714 So.2d 651, 652 (Fla. 4" DCA 1998). However, before this Court can reach the merits of the Respondent's allegations, it must determine whether the Respondent has standing to even bring such a claim. Typically, the moving party for disqualification under FRPrC 4-1.7 is a former client of an adverse attorney representing a current client, whose interests are adverse to the interests of that of the former client. In this case the Respondent is seeking to disqualify an attorney who never represented the Respondent. However, where the conflict is such as clearly to call in question the fair or efficient administration of ju: , opposing counsel may properly raise the question. State Farm v. KAW. 575 So.2d 630 (Fla, 1991); Fla.Bar Rule 4-1.7, Comments. If requesting such relief, opposing counsel is required to show that 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. K.A.W. at 633. The issue turns on whether an actual attorney/client relationship existed between Mr. Wysong as the Assistant City Attorney and the potential police witnesses for the Respondent. Pursuant to City of Miami Charter and Code, Section 21 “Department of Law,” “The city attorney shall be the director of the department of law and an attorney-at law admitted to the practice in the State of Florida. The city attorney shall be the legal advisor of and attorney and counsel for the city, and for all officers and departments thereof in matters relating to their * (a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another cient; or substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's ies to another client, a former client or a third person or by a personal interest of the lawyer.