Filing # 104511491 E-Filed 03/06/2020 11:57:23 PM

DAVID J. WINKER, P.A.

305 801 8700
dwinker@dwrlc.com

March 6, 2020

Honorable Abby Cynamon

Circuit Court Judge
Dade County Courthouse
73 West Flagler Street,
DCC 1304
Miami, Florida 33130

RE: Steven Miro vs. City of Miami Case No.: 19-30366 CA-01 (06)

Dear Judge Cynamon:

This correspondence is being provided in response to the City of Miami’s letter to you dated
today March 6, 2020.

In its letter the City’s attaches a number of cases. Ironically, one of the cases the City forwarded
to you with the letter demonstrates the absurdity of the City’s argument.

In Anderson Trucking Service, Inc. v. Gibson, 884 So. 2d 1046 (5th DCA 2004), the court
overturned a lower court decision that had disqualified counsel.

In that case, Gibson was suing a number of defendants seeking damages for a wrongful death
caused by a fatal tractor trailer accident. The defendants involved in the disqualification
proceeding were Intermodal Caribbean Express, Inc. (“Intermodal”) and Anderson Trucking
Services, Inc. (“Anderson Trucking”), owners of the trailer, and Steven Minchew, driver and
owner of the tractor.

As to these defendants, the complaint alleged that ICE and Anderson were vicariously liable for
the acts of Minchew based on the theories of joint venture and ultrahazardous activities. A third
count alleged that ICE and Anderson were directly liable for failing to check the qualifications of
Minchew before allowing him to operate the transport.

The disqualification order was directed to Edward W. Levine, Esq. who initially represented all
three defendants. Levine withdrew from representation of Minchew to avoid the appearance of a
conflict, and Minchew retained other counsel.

1
After he withdrew from representation of Minchew, Gibson filed a motion to disqualify Levine
from further representation of Anderson and ICE.

The court began its analysis by recognizing that

Disqualification of counsel implicates a wide range of interests. It is generally

agreed that a client has a right to counsel of his or her choice. Disqualification
may impose extreme hardships on the client because this very valuable right is
taken away. Time and effort must be expended to find a suitable replacement and,
when one is found, the client may suffer financial hardship in attempting to retain
the substitute. Moreover, disqualification may unalterably damage the relationship
and confidences developed between attorney and client. Although the ethical rules
that govern attorney/client relationships are primarily intended to protect the
client, see K.A.W., disqualification also implicates the attorney's interest in
representing clients of his or her choice, and in some instances it may adversely
affect counsel's ability to trade on his or her experiences and expertise in a
specified area of the law. Hence, attorneys are not fungible items that can be
removed and conveniently replaced without causing undue hardship to the client
and to the attorney.

Because of these considerations, the court concluded that Florida “courts have consistently
recognized that ‘[d]isqualification of a party's chosen counsel is an extraordinary remedy
and should be granted sparingly.’ Cunningham v. Appel, 831 So.2d 214, 215 (Fla. 5th DCA
2002) (citations omitted); see also Vick v. Bailey, 777 So.2d 1005 (Fla. 2d DCA 2000).”
(emphasis added).

The court began by setting forth the standard for determining whether “granting the
extraordinary remedy of disqualification” was proper, which involves determining whether the
party seeking to disqualify counsel had “standing to seek the disqualification of counsel,” and if
so, whether such party has shown that:

1) an attorney/client relationship existed; and

2) the attorney represents another client regarding a matter, or substantially related

matter, that is adverse to the interests of the former client seeking the
disqualification. (emphasis added).

The court found that Gibson did not have standing because she was seeking to disqualify the
attorney of an opposing party who never represented Gibson.

Of course, that is exactly the same circumstance here- the City is seeking to disqualify
undersigned counsel, who has never represented the City in any matter. As such, the City does
not have standing to disqualify undersigned counsel.

2
The court went on to conclude that even if Gibson had standing, no conflict would result because
the attorney subject to the disqualification motion did not represent the interests of a current
client that are adverse to the same interests of the current client's opponent who the attorney
formerly represented. Because the attorney never represented Gibson, this requirement cannot
be met.

Again, the same situation exists here- the undersigned never represented the City in any matter.
As such, this prong cannot be satisfied and no conflict exists.

The City’s misuse of the Ethical Rules warrant a referral to the Florida Bar

The Comment to Rule Regulating The Florida Bar 4–1.7 recognizes that ethical rules relating to
conflict of interest are subject to misuse:

Where the conflict is such as clearly to call in question the fair or efficient
administration of justice, opposing counsel may properly raise the question. Such
an objection should be viewed with caution, however, for it can be misused as a
technique of harassment. (emphasis added).

As outlined above, the caselaw cited by the City’s counsel makes clear that the City is aware of
the law on disqualification, but is consciously choosing to ignore the fact that it makes clear that
no ethical violation exists.

The fact that the City’s goal is harassment is evidenced by it improperly insinuating that
undersigned counsel has somehow violated the ethical rules in being retained by Tanjha
Quintana.

As outlined in my Motion to Strike, it is important to note that undersigned counsel sent an email
to counsel of record pointing out the errors in the City’s legal analysis and requesting that they
withdraw their spurious Motion to Disqualify. Instead, the City doubled down and delivered a
letter to you with additional caselaw… which makes clear that the City’s position is inapposite to
applicable law.

Undersigned counsel would like to respectfully suggest that the spurious and unfounded
allegation that the undersigned engaged in an ethical violation warrants not only the sanctions
requested in the undersigned’s Motion to Strike, but also a referral to the Florida Bar of both
VICTORIA MÉNDEZ, City Attorney and KEVIN R. JONES, Division Chief for Labor &
Employment, the signatories to the Motion to Disqualify.

3
 Sincerely,

_______/djw/___________
David J. Winker, Esq.

cc: Counsel for the Plaintiff (by email)

Counsel of Record for City of Miami (by email)