1 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 2 WILLIAM RIVERA MOLINA, INT’L BUS. 3 SOL., LLC, and EBANO 155, INC.,
4 Plaintiffs,
5 v. Civil No. 21-1004 (GAG)
6 CASA LA ROCA, LLC, CHARLES HENRY EUGENE VOGEL, and JUANITA KAY 7 VOGEL,
8 Defendants.
9 CASA LA ROCA, LLC, CHARLES HENRY 10 EUGENE VOGEL, and JUANITA KAY VOGEL, 11 Plaintiffs, 12 Civil No. 21-1144 (GAG) v. 13 WILLIAM RIVERA MOLINA, personally 14 and in representation of POPPY 47, INC., INT’L BUS. SOL., LLC, EBANO 155, INC., 15 DC PROJECT MGMT. CORP.,
16 Defendants.
17 MEMORANDUM ORDER 18 Presently before the Court is William Rivera Molina, International Business Solutions, LLC, 19 Ebano 155, Inc., and DC Project Management Corp. (collectively, “Rivera Molina”)’s motion to 20 disqualify the law firm of Indiano & Williams from representing Casa La Roca, LLC, Charles Henry 21 Eugene Vogel, and Juanita Kay Vogel (collectively, “Vogel”) in the above-captioned lawsuits. 22 (Docket No. 92). Vogel opposed. (Docket No. 93). For the ensuing reasons, the Court DENIES 23 Rivera Molina’s motion to disqualify counsel at Docket No. 92. 24 1 I. Standard of Review 2 A motion to disqualify an attorney is an accepted and adequate way for a litigant to bring a 3 potential conflict of interest to the Court’s attention. See Reyes Cañada v. Rey Hernández, 193 F.
4 Supp. 2d 409, 411 (D.P.R. 2002); Southwire Co. v. Ramallo Brothers Printing, Inc., Civil No. 03- 5 1100 (GAG), 2009 WL 3429773, at *1 (D.P.R. Oct. 19, 2009). Courts, however, should be cautious 6 in analyzing a disqualification motion because they are often used for strategic purposes. See Reyes 7 Cañada, 193 F. Supp. 2d at 411; Somascan Plaza, Inc. v. Siemens Med. Sys., 187 F.R.D. 34, 37 8 (D.P.R. 1999). Furthermore, disqualifying a “party’s chosen attorney is a serious matter which could 9 not be supported by the mere possibility of a conflict.” Estrada v. Cabrera, 632 F. Supp. 1174, 1175 10 (D.P.R. 1986) (citing Richmond Hilton Ass’n v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir. 11 1982)). Thus, the Court must balance a client’s right to be represented by an attorney of its choice 12 and the integrity of the legal system. See Kevlik v. Goldstein, 724 F.2d 844, 850 (1st Cir. 1984); 13 Polyagro Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253, 256 (D.P.R. 1995).
14 II. Discussion 15 In moving to disqualify counsel for Vogel, Rivera Molina argues that Vogel’s “Urgent 16 Motion for Service Update as to Personal Service Attempts on Defendant William Rivera Molina,” 17 at Docket No. 52 exposed an impermissible conflict of interest pursuant to Rule 1.9(a) of the Model 18 Rules of Professional Conduct (“Model Rules”). (Docket No. 92 at 2). In his motion for service of 19 summons, Vogel stated: 20 Since then, [Vogel] has relentlessly attempted to serve [International Business Solutions, LLC,] through defendant and principal [Rivera Molina]. Rivera [Molina] 21 is clearly attempting to avoid and evade service in order to delay these proceedings. Undersigned counsel has already witnessed this behavior by Rivera [Molina] in 22 other litigation related to these very same properties wherein he was subpoenaed to testify as a witness. 23 (Docket No. 52 at 2) (added emphasis). Rivera Molina contends that the conflict of interest arises 24 1 representation who also represented Vogel in a prior litigation: Vogel v. Universal Ins. Co., Civil 2 No. 18-1706 (RAM) (D.P.R. Mar. 24, 2021). 3 Rivera Molina alleges that Indiano & Williams consistently acted as his legal representative
4 and, consequently, a conflict of interest exists in the firm’s representation of Vogel. (Docket No 92 5 at 3). Moreover, Rivera Molina claims that Indiano & Williams gained direct access to a great deal 6 of personal knowledge about his behavior such as: his personality traits, his potential strengths as 7 well as weaknesses as a witness, his working habits, and his entrepreneurial vision. Id. Rivera 8 Molina posits that a conflict of interest exists because Indiano & Williams is impermissibly using 9 this knowledge about his personal and business life, which he “reasonably thought was covered by 10 the attorney-client privilege” from the prior litigation related to the same properties now subject to 11 the above-captioned lawsuit. Id. 12 a. Civil No. 18-1706 (RAM) 13 In Vogel v. Universal Ins. Co., Civil No. 18-1706 (RAM), Rivera Molina served as a liaison
14 between Indiano & Williams and Vogel, and was the principal witness with regards to Vogel’s 15 claims against Universal Insurance Co. seeking to collect monies owed under insurance policies 16 covering the Casa La Roca properties. (Docket No. 92 at 3-6, n. 1). Ultimately, Vogel v. Universal 17 Ins. Co., was dismissed when the Court granted Universal’s motion for summary judgment ruling 18 that the Casa La Roca properties no longer qualified for coverage under the insurance policy. Vogel 19 v. Universal Ins. Co., Civil No. 18-1706 (RAM), 2021 WL 1125015, at *14 (D.P.R. Mar. 24, 2021). 20 Specifically, the Court found that Vogel had been renting the La Roca properties since 2016, which 21 the insurance policy explicitly excluded from coverage. Id. at 14-15. 22 b. Model Rules of Professional Conduct
23 Rule 1.9(a) of the Model Rules provides: 24 A lawyer who has formerly represented a client in a matter shall not thereafter 1 person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. 2 MODEL RULES OF PRO. CONDUCT r. 1.9(a) (AM. BAR ASS’N 2019); see also D.P.R. L.Cv.R. 83E(a). 3 Rule 1.10 provides for the imputed disqualification of an attorney, such that if one member of a firm 4 is disqualified from a case, his colleagues in the firm are likewise disqualified. MODEL RULES OF 5 PRO. CONDUCT r. 1.10 (AM. BAR ASS’N 2019). The purpose of this disqualification rule is to prevent 6 confidential information, from a prior representation, from being used for the benefit of another 7 client who is now the adversary of the prior client. Reyes Cañada, 193 F. Supp. 2d at 411; Kevlik, 8 724 F.2d at 850-51. 9 The First Circuit has reaffirmed that the “substantially related” test governs the inquiry into 10 whether disqualification is appropriate in attorney conflict of interest cases. Starlight Sugar Inc. v. 11 Soto, 903 F. Supp. 261, 265 (D.P.R. 1995) (citing Borges v. Our Lady of the Sea Corp., 935 F.2d 12 436, 439 (1st Cir. 1991)). “The relevant inquiry is whether the subject matter of the two 13 representations is ‘substantially related;’ could the attorney have obtained confidential information 14 in the first suit that would have been relevant to the second.” Borges, 935 F.2d at 439; see also 15 Kevlik, 724 F.2d at 850-51. The following approach is useful to determine whether matters are 16 “substantially related:” 17 First, the court reconstructs the scope of the facts involved in the former 18 representation and projects the scope of the facts that will be involved in the second representation. Second, the court assumes that the lawyer obtained confidential client 19 information about all facts within the scope of the former representation. Third, the court determines whether any aspect of the former representation is so similar to any 20 material matter in the latter representation that a lawyer would consider it useful in advancing the interests of the client in the latter representation. 21 Starlight, 903 F. Supp. at 265-66. In addition, “[t]he moving party bears the burden in a motion to 22 disqualify. Thus, the moving party must allege the type and nature of the confidences that were 23 exchanged in the prior litigation that should subsequently disqualify the attorney in the latter 24 1 representation.” Starlight, 903 F. Supp.
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1 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 2 WILLIAM RIVERA MOLINA, INT’L BUS. 3 SOL., LLC, and EBANO 155, INC.,
4 Plaintiffs,
5 v. Civil No. 21-1004 (GAG)
6 CASA LA ROCA, LLC, CHARLES HENRY EUGENE VOGEL, and JUANITA KAY 7 VOGEL,
8 Defendants.
9 CASA LA ROCA, LLC, CHARLES HENRY 10 EUGENE VOGEL, and JUANITA KAY VOGEL, 11 Plaintiffs, 12 Civil No. 21-1144 (GAG) v. 13 WILLIAM RIVERA MOLINA, personally 14 and in representation of POPPY 47, INC., INT’L BUS. SOL., LLC, EBANO 155, INC., 15 DC PROJECT MGMT. CORP.,
16 Defendants.
17 MEMORANDUM ORDER 18 Presently before the Court is William Rivera Molina, International Business Solutions, LLC, 19 Ebano 155, Inc., and DC Project Management Corp. (collectively, “Rivera Molina”)’s motion to 20 disqualify the law firm of Indiano & Williams from representing Casa La Roca, LLC, Charles Henry 21 Eugene Vogel, and Juanita Kay Vogel (collectively, “Vogel”) in the above-captioned lawsuits. 22 (Docket No. 92). Vogel opposed. (Docket No. 93). For the ensuing reasons, the Court DENIES 23 Rivera Molina’s motion to disqualify counsel at Docket No. 92. 24 1 I. Standard of Review 2 A motion to disqualify an attorney is an accepted and adequate way for a litigant to bring a 3 potential conflict of interest to the Court’s attention. See Reyes Cañada v. Rey Hernández, 193 F.
4 Supp. 2d 409, 411 (D.P.R. 2002); Southwire Co. v. Ramallo Brothers Printing, Inc., Civil No. 03- 5 1100 (GAG), 2009 WL 3429773, at *1 (D.P.R. Oct. 19, 2009). Courts, however, should be cautious 6 in analyzing a disqualification motion because they are often used for strategic purposes. See Reyes 7 Cañada, 193 F. Supp. 2d at 411; Somascan Plaza, Inc. v. Siemens Med. Sys., 187 F.R.D. 34, 37 8 (D.P.R. 1999). Furthermore, disqualifying a “party’s chosen attorney is a serious matter which could 9 not be supported by the mere possibility of a conflict.” Estrada v. Cabrera, 632 F. Supp. 1174, 1175 10 (D.P.R. 1986) (citing Richmond Hilton Ass’n v. City of Richmond, 690 F.2d 1086, 1089 (4th Cir. 11 1982)). Thus, the Court must balance a client’s right to be represented by an attorney of its choice 12 and the integrity of the legal system. See Kevlik v. Goldstein, 724 F.2d 844, 850 (1st Cir. 1984); 13 Polyagro Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253, 256 (D.P.R. 1995).
14 II. Discussion 15 In moving to disqualify counsel for Vogel, Rivera Molina argues that Vogel’s “Urgent 16 Motion for Service Update as to Personal Service Attempts on Defendant William Rivera Molina,” 17 at Docket No. 52 exposed an impermissible conflict of interest pursuant to Rule 1.9(a) of the Model 18 Rules of Professional Conduct (“Model Rules”). (Docket No. 92 at 2). In his motion for service of 19 summons, Vogel stated: 20 Since then, [Vogel] has relentlessly attempted to serve [International Business Solutions, LLC,] through defendant and principal [Rivera Molina]. Rivera [Molina] 21 is clearly attempting to avoid and evade service in order to delay these proceedings. Undersigned counsel has already witnessed this behavior by Rivera [Molina] in 22 other litigation related to these very same properties wherein he was subpoenaed to testify as a witness. 23 (Docket No. 52 at 2) (added emphasis). Rivera Molina contends that the conflict of interest arises 24 1 representation who also represented Vogel in a prior litigation: Vogel v. Universal Ins. Co., Civil 2 No. 18-1706 (RAM) (D.P.R. Mar. 24, 2021). 3 Rivera Molina alleges that Indiano & Williams consistently acted as his legal representative
4 and, consequently, a conflict of interest exists in the firm’s representation of Vogel. (Docket No 92 5 at 3). Moreover, Rivera Molina claims that Indiano & Williams gained direct access to a great deal 6 of personal knowledge about his behavior such as: his personality traits, his potential strengths as 7 well as weaknesses as a witness, his working habits, and his entrepreneurial vision. Id. Rivera 8 Molina posits that a conflict of interest exists because Indiano & Williams is impermissibly using 9 this knowledge about his personal and business life, which he “reasonably thought was covered by 10 the attorney-client privilege” from the prior litigation related to the same properties now subject to 11 the above-captioned lawsuit. Id. 12 a. Civil No. 18-1706 (RAM) 13 In Vogel v. Universal Ins. Co., Civil No. 18-1706 (RAM), Rivera Molina served as a liaison
14 between Indiano & Williams and Vogel, and was the principal witness with regards to Vogel’s 15 claims against Universal Insurance Co. seeking to collect monies owed under insurance policies 16 covering the Casa La Roca properties. (Docket No. 92 at 3-6, n. 1). Ultimately, Vogel v. Universal 17 Ins. Co., was dismissed when the Court granted Universal’s motion for summary judgment ruling 18 that the Casa La Roca properties no longer qualified for coverage under the insurance policy. Vogel 19 v. Universal Ins. Co., Civil No. 18-1706 (RAM), 2021 WL 1125015, at *14 (D.P.R. Mar. 24, 2021). 20 Specifically, the Court found that Vogel had been renting the La Roca properties since 2016, which 21 the insurance policy explicitly excluded from coverage. Id. at 14-15. 22 b. Model Rules of Professional Conduct
23 Rule 1.9(a) of the Model Rules provides: 24 A lawyer who has formerly represented a client in a matter shall not thereafter 1 person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. 2 MODEL RULES OF PRO. CONDUCT r. 1.9(a) (AM. BAR ASS’N 2019); see also D.P.R. L.Cv.R. 83E(a). 3 Rule 1.10 provides for the imputed disqualification of an attorney, such that if one member of a firm 4 is disqualified from a case, his colleagues in the firm are likewise disqualified. MODEL RULES OF 5 PRO. CONDUCT r. 1.10 (AM. BAR ASS’N 2019). The purpose of this disqualification rule is to prevent 6 confidential information, from a prior representation, from being used for the benefit of another 7 client who is now the adversary of the prior client. Reyes Cañada, 193 F. Supp. 2d at 411; Kevlik, 8 724 F.2d at 850-51. 9 The First Circuit has reaffirmed that the “substantially related” test governs the inquiry into 10 whether disqualification is appropriate in attorney conflict of interest cases. Starlight Sugar Inc. v. 11 Soto, 903 F. Supp. 261, 265 (D.P.R. 1995) (citing Borges v. Our Lady of the Sea Corp., 935 F.2d 12 436, 439 (1st Cir. 1991)). “The relevant inquiry is whether the subject matter of the two 13 representations is ‘substantially related;’ could the attorney have obtained confidential information 14 in the first suit that would have been relevant to the second.” Borges, 935 F.2d at 439; see also 15 Kevlik, 724 F.2d at 850-51. The following approach is useful to determine whether matters are 16 “substantially related:” 17 First, the court reconstructs the scope of the facts involved in the former 18 representation and projects the scope of the facts that will be involved in the second representation. Second, the court assumes that the lawyer obtained confidential client 19 information about all facts within the scope of the former representation. Third, the court determines whether any aspect of the former representation is so similar to any 20 material matter in the latter representation that a lawyer would consider it useful in advancing the interests of the client in the latter representation. 21 Starlight, 903 F. Supp. at 265-66. In addition, “[t]he moving party bears the burden in a motion to 22 disqualify. Thus, the moving party must allege the type and nature of the confidences that were 23 exchanged in the prior litigation that should subsequently disqualify the attorney in the latter 24 1 representation.” Starlight, 903 F. Supp. at 265 (citing Estrada, 632 F. Supp. at 1175); see also in re 2 Agent Orange Product Liability Litigation, 800 F.2d 14, 19 (2d Cir. 1986). 3 Vogel claims that the conflict of interest argument is inapplicable to this scenario because
4 Indiano & Williams never had an attorney-client relationship with Rivera Molina. (Docket No. 93 5 at 17). Vogel states that Indiano & Williams’ relationship with Rivera-Molina consisted solely of an 6 attorney-witness relationship as part of the firm’s sole representation of Vogel in the breach of 7 insurance contract claim. (Docket No. 93 at 14, 17). As such, Vogel cites Headfirst Baseball LLC v. 8 Elwood, 999 F. Supp. 2d 199, 203-04, 209 (D.D.C. 2013), to argue that Rivera Molina fails the first 9 part of the “substantial relationship” test because “there is simply no proof to uphold that the relation 10 between Indiano & Williams and Rivera Molina was one that construes a former legal relationship.” 11 (Docket No. 93 at 17). 12 Under Puerto Rico law, it is well established “that an attorney-client relationship begins when 13 a potential client seeks the advice or representation of an attorney on a legal issue.” Campos-Matos
14 v. Evanstone Ins. Co., 208 F. Supp. 2d 170, 173 (D.P.R. 2002) (citing In re Belén Trujillo, 26 P.R. 15 Offic. Trans. 60, at 11, 126 P.R. Dec. 743, 756 (P.R. 1990)). 16 Here, there is absolutely no evidence that Rivera Molina had an attorney-client relationship 17 with Indiano & Williams. In fact, Vogel provides evidence that Rivera Molina was a third-party 18 witness in the insurance contract suit, (Docket Nos. 93-15; 93-17), and that he even retained separate 19 legal counsel. (Docket No. 93-18). In addition, Vogel points out that Rivera Molina never signed a 20 retainer agreement with Indiano & Williams, nor did the firm receive payment of any attorneys’ fees 21 from Rivera Molina. (Docket No. 93 at 12); see Headfirst Baseball, 999 F. Supp. 2d at 210 (holding 22 no attorney-client relationship existed because neither party presented documentation affirming this
23 relationship). 24 1 Rivera Molina alleges he was responsible for the hiring of Indiano & Williams to pursue the 2 insurance contract claim. (Docket No. 92-1 ¶ 7). However, Indiano & Williams claims this assertion 3 is false. (Docket No. 93 at 4-5, 21). Instead, it avers that attorney Jose Antonio Pagán Nieves from
4 Pagan Law Offices, who previously represented Vogel in an extrajudicial claim to Universal 5 Insurance Co., referred Vogel to Indiano & Williams. (Docket Nos. 93 at 4-5, 21; 93-1). In 6 conclusion, Rivera Molina has failed to prove that he was a former client of Indiano & Williams, 7 which would have established an attorney-client relationship under Puerto Rico law. He was never 8 a potential client who sought the law firm’s advice or representation on a particular legal issue. 9 III. Conclusion 10 For the foregoing reasons, the Court DENIES Rivera Molina’s motion to disqualify counsel 11 at Docket No. 92. 12 SO ORDERED. 13 In San Juan, Puerto Rico this 28th day of June 2021. s/ Gustavo A. Gelpí 14 GUSTAVO A. GELPI United States District Judge 15 16 17 18 19 20 21 22 23 24