Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT FREDDIE JOHN GORDINEER, Petitioner, v. STATE OF FLORIDA, Respondent. No. 2D21-2844 March 18, 2022 Petition for Writ of Certiorari to the Circuit Court for Lee County; Bruce Kyle, Judge. Kathleen A Smith, Public Defender, and Gary H. Bass, Assistant Public Defender, Fort Myers, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Respondent. KHOUZAM, Judge. This is Freddie John Gordineer's timely petition for writ of certiorari seeking review of the circuit court's order denying his public defender's motion to withdraw based on a conflict of interest. Because an actual conflict existed, the circuit court departed from the essential requirements of the law in denying the motion to withdraw. Thus, we grant the petition and quash the order denying the motion to withdraw. The conflict of interest arose because the public defender's office fell victim to a malware attack, and Gordineer joined a lawsuit in federal court alleging the attack breached sensitive personal information and compromised confidential case files. Although the federal suit was ultimately dismissed as to Gordineer, his public defender filed a certification of conflict in this case asserting that Gordineer's involvement in the lawsuit had created a conflict of interest that prevented the public defender's office from adequately and ethically representing Gordineer. See Johnson v. State, 78 So. 3d 1305, 1308 (Fla. 2012) ("[A]n attorney has an ethical obligation to avoid conflicts of interest and should advise the court when one arises."). The public defender also filed a motion to withdraw on the basis that the "contested allegations [in the federal lawsuit] create a scenario where the client's interests in the criminal case are materially limited by the Public Defender's interests" in contesting 2 those allegations. See Fla. R. Prof. Conduct 4-1.7(a)(2) (providing that "a lawyer must not represent a client if . . . there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." (emphasis added)). The public defender argued that allegations made in the federal suit "significantly impact the ability to communicate about this case."1 The circuit court denied the motion to withdraw, reasoning that the dismissed lawsuit by itself did not show an actual conflict that would have an adverse effect on the public defender's representation. Rather, the court concluded that the allegations of a conflict were merely speculative. Moreover, the court suggested 1 The public defender also noted in the motion to withdraw that The Florida Bar ethics hotline had been consulted, asserting: The Florida Bar ethics hotline was contacted about this case and other similarly situated cases. Upon consultation and being fully advised of these facts and circumstances, the Florida Bar agreed with the undersigned's evaluation of the issues and application of Rule 4-1.7, and that the Public Defender must withdraw due to this conflict. 3 that Gordineer's participation in the lawsuit was an attempt to create a conflict of interest so he could shop around for new counsel. This petition follows, challenging the circuit court's denial of the motion to withdraw. As a threshold issue, we note that "[c]ertiorari is an appropriate vehicle for review of an order denying a motion to withdraw in a criminal matter." Brower v. State, 267 So. 3d 524, 525 (Fla. 5th DCA 2019) (quoting Smith v. State, 156 So. 3d 1119, 1122 (Fla. 1st DCA 2015)). "[A] trial court order compelling an ethically conflicted attorney to represent a criminal defendant denies that criminal defendant effective assistance of counsel." Young v. State, 189 So. 3d 956, 959 (Fla. 2d DCA 2016). "This 'constitutes a departure from the essential requirements of the law that would result in an irreparable, material harm to the [certiorari] petitioner that cannot be remedied on final appeal.' " Id. (alteration in original) (quoting Smith, 156 So. 3d at 1126). "[W]hether an actual conflict exists must be evaluated on the specific facts of each case" because "[c]onflict of interest and divided loyalty situations can take many forms." Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991). "In general, a conflict exists when 4 an attorney is placed in a situation conducive to divided loyalties," which "can include situations in which the caliber of an attorney's services 'may be substantially diluted.' " Id. (quoting U.S. v. Hurt, 543 F.2d 162, 166 (D.C. Cir. 1976)). Here, it is clear that an actual conflict of interest existed between the public defender's office and Gordineer because they had become adversaries in the federal lawsuit. "A federal lawsuit pitting the defendant against his attorney certainly suggests divided loyalties and gives the attorney 'a personal interest in the way he conducted [defendant's] defense—an interest independent of, and in some respects in conflict with, [defendant's] interest in obtaining a judgment of acquittal.' " Id. at 1321 (quoting Douglas v. United States, 488 A.2d 121, 136 (D.C. 1985)). Regardless of whether the lawsuit was ultimately dismissed, Gordineer and the public defender's office were on opposites sides and took opposing positions in the lawsuit. Gordineer's position is that the malware attack breached sensitive personal information and compromised confidential case files. The public defender's office contests these allegations. But both Gordineer and his public defender agree that their ability to communicate has been hindered by the attack and 5 lawsuit. Indeed, the public defender filed a certification of conflict. And the fact that Gordineer's public defender was not personally involved in either the attack or the lawsuit is irrelevant here, considering that the conflict is imputed. See Smith, 156 So. 3d at 1123 ("Where one public defender has a conflict of interest, that conflict is imputed to the entire public defender's office."). Because there was an actual conflict of interest, compelling the public defender to represent Gordineer constitutes a denial of his right to effective assistance of counsel. See Young, 189 So. 3d at 959. Accordingly, denying the motion to withdraw was a departure from the essential requirements of the law that would result in irreparable, material harm to Gordineer that could not be remedied on appeal. See id. The circuit court reasoned that any conflict was potential instead of actual, but in the pretrial context a showing of actual conflict is not even required—potential conflict is sufficient. See Smith, 156 So. 3d at 1123 ("In the murkier pre-trial context when relationships between parties are seen through a glass, darkly, the court is accorded broad discretion in determining whether the potential for conflict exists." (internal quotation marks omitted) 6 (quoting Kolker v. State, 649 So. 2d 250, 251-52 (Fla. 3d DCA 1994))). Indeed, "[v]iewed prospectively, any substantial risk of harm is deemed prejudicial." Id. (quoting Scott v. State, 991 So. 2d 971, 972 (Fla. 1st DCA 2008)). But more important, the facts of the instant case present an actual conflict—more than just a potential one—thereby warranting relief under either standard. The circuit court was also concerned that Gordineer was using the federal lawsuit to shop around for a new attorney, citing to Miller v. State, 921 So. 2d 816 (Fla. 5th DCA 2006). In Miller, any conflict of interest "was entirely created by the client" because the client's federal suit against his attorney was "apparently no more than a claim of ineffective assistance dressed up in civil law clothing." Id. at 819. Here, however, there is no evidence of that type of abuse whatever. Gordineer was not the only one to allege that a conflict existed—rather, the public defender certified the conflict and later moved to withdraw. And there is no dispute that there was a malware attack on the public defender's office. Further, Gordineer sought a new attorney and joined the class action suit against the public defender's office only after the attack occurred— before that time, he had not sought a new attorney or taken legal 7 action against his attorney. Gordineer did not initiate the federal lawsuit himself; rather, he joined in an existing lawsuit brought by third parties. So there is no record basis to believe that Gordineer's claim has been manufactured for the purpose of manipulating the system. On these facts, the circuit court's concern that Gordineer was shopping for a new attorney was completely unfounded. Because the circuit court's denial of the motion to withdraw amounted to a departure from the essential requirements of the law, we grant Gordineer's petition and quash the circuit court's order denying the motion to withdraw. Petition granted; order quashed. BLACK and LUCAS, JJ., Concur. __________________________ Opinion subject to revision prior to official publication. 8