Florida’s Third District Court of Appeal Wednesday rejected a bid by Cole, Scott & Kissane, Florida’s largest insurance defense firm, to remove a state court judge from more than two dozen cases.
The judicial panel consolidated 27 appeals in which the firm sought to disqualify Miami-Dade Circuit Judge David C. Miller from its cases after a Cole Scott attorney filed to run against the jurist in the August primary election.
The appellate court noted Elisabeth Espinosa—a Cole Scott partner who became a candidate for Miller’s seat—was not involved in any of the cases before her political opponent, and that the firm had alleged no behavior that suggested Miller would be impartial in adjudicating litigation involving Cole Scott clients.
“There is no allegation that any member of the law firm is associated with the attorney candidate’s campaign (as chair or teasurer, for example),” Third DCA Judge Vance E. Salter wrote in a unanimous decision with Judges Kevin Emas and Norma S. Lindsey. ”There is no allegation whether the law firm approves or disapproves of the attorney candidate’s campaign, or whether the law firm itself, as a professional association, has any position formally supporting the attorney candidate’s individual decision to run for the judicial position.”
“Nor does any movant describe any conduct or comment by the incumbent judge, whether in court or out of court, alleged to evidence bias or prejudice against the party or the Law Firm in the particular case,” the ruling continues. “In short, the motions allege in a conclusory way that the movants anticipate ‘inherent’ prejudice or bias that will arise against the entire law firm of which the attorney candidate is a part.”
The firm’s managing partner, Richard Cole, reiterated that the decision to attempt to disqualify Miller came from clients who were worried the judge might be biased after Espinosa filed to challenge him for the judicial seat in Division 8.
“It was not our motion. It was the litigants that we represent. I don’t know if they will seek any further review, but we will obviously abide by the ruling of the court,” Cole said. “It was the clients’ fear that they would not receive a fair trial in front of this judge. I am not the client; I am the law firm. I’m hopeful that everybody will act in accordance with the various rules regulating the Florida Bar and various judicial canons of ethics.”
Espinosa is a nonequity partner in the firm’s civil litigation department, focusing on defense work in premises liability suits. She also practices in federal court and served as an assistant state attorney in Tampa for nearly six years and joined Cole Scott in 2014. She did not immediately respond to a request for comment.
Miami-based Cole Scott had 38 motions to disqualify Miller after Espinosa stepped into the political arena. Miller denied all 38 motions, prompting multiple challenges before the Third DCA.
It was not immediately known if Cole Scott will raise additional challenges. But if it does, the appellate court said it would review each matter on a case-by-case basis. The court also noted that its ruling was limited to the specific cases at hand, and should ”not be construed to apply to any circumstances beyond those presented.”
“If and when petitions for prohibition are filed here after rulings are made by the incumbent judge in additional cases, our consolidation order contemplates that the same panel will be assigned those petitions,” the Third DCA wrote in a footnote to Wednesday’s ruling. “As the records and applicable authorities may differ in any such cases, we express no opinion regarding the disposition of petitions beyond those already consolidated in the caption of this opinion.”
Meanwhile, opposing counsel praised the appellate ruling, calling it “brilliantly written,” “thorough” and “scholarly.”
“It is an important rejection of the tactics of the Cole Scott & Kissane law firm to try to offensively impute a conflict by one of their attorneys,” said Victor M. Diaz Jr., who filed a cross-motion in one of the cases, in an attempt to exclude Cole Scott from the litigation. “I think it’s a full vindication of judge David Miller, who had the courage to deny the motion for recusal. It would have been much easier for the judge just to grant the recusal and avoid making himself the subject of a judicial opinion.”
Miami attorney Joel S. Perwin, a former Podhurst Orseck shareholder who is involved in one of the 38 cases, also welcomed the ruling.
“That’s an important precedent,” Perwin said. “What the court is saying is you can’t disqualify a judge just because somebody else from your firm, who is not involved in your case, is challenging him for his seat.”
Read the ruling: