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Two Florida Lawyers Feel the Burn of Hot Potato Doctrine

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By William Vogeler, Esq. on May 02, 2018 11:58 AM

If a court ever cites your case for authority, you could feel legally legit -- unless it's a bad case.

That's what happened to a couple of attorneys when the Florida Supreme Court cited the "hot potato doctrine." Based on a case the lawyers had litigated years ago, the high court suspended them for violating ethics rules on client conflicts.

The 30-day suspension was embarrassing for the prominent litigators. But in the end, they literally had themselves to blame.

'Hot Potato Doctrine'

Philip Gerson and Steven Hunter had no record of prior discipline, but the table was set for their suspension based on a case they handled in 2014. They had been disqualified from the case because of a conflict of interest.

In that case, Young v. Achenbauch, the state Supreme Court directed the Florida bar to investigate whether the lawyers violated any rules of professional conduct. According to reports, the "hot potato doctrine" emerged because Gerson and Hunter had dropped clients "like a hot potato" to avoid a conflict with new clients.

When the issue came back to the Supreme Court for disciplinary review, the lawyers were already in trouble. It started with their work on the underlying class-action suit.

After that case settled, they tried to negotiate payments for individual class members but other class members objected. Gerson and Hunter withdrew from their prior representation to deal with the conflict, but they were disqualified anyway.

Not Admonishment, Suspension

It was bad enough they were disqualified in the litigation; then they were punished in the disciplinary proceedings.

A court-appointed referee had recommended admonishment, saying the attorneys violated a professional rule that deals with current clients. But the state Supreme Court said they also violated a rule that serves former clients, and decided to suspend the lawyers.

Gerson, a high-profile attorney in Miami, was disappointed by the ruling. David Pollack, his attorney in the case, said his client will return to practice after his suspension.

"It's just a shame that 40 years on, he has this one blight on his not just spotless ethical record, but his record of service to the bar and the broader community," Pollack said.

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