Barnett Banks Inc. has asked a federal court to disqualify the plaintiffs' lawyer from a pending class action against the bank.
The Jacksonville, Fla.-based bank's lawyers have filed an emergency motion in court to disqualify Jonathan L. Alpert from representing the plaintiffs in a class action that alleges Barnett's securities subsidiary employees did not properly disclose the risks of mutual fund investments.
The bank is also asking for the return of confidential company documents that Mr. Alpert included in the class action filing.
This is the first time a bank has taken action against Mr. Alpert, a Tampa lawyer who has filed similar suits against other large banks and thrifts with securities operations in Florida. Mr. Alpert's targets include First Union Corp., Amsouth Bancorp., Great Western Financial Corp., and NationsBank Corp.
"He's making allegations against institutions for not following regulations, but he can't follow the basic ethical guidelines of his profession," said Peter W. Homer, the Miami-based attorney representing Barnett. In the filing, Mr. Homer cites American Bar Association and Florida Bar Association ethical guidelines for handling privileged and confidential documents.
But according to a class action expert, to get Mr. Alpert disqualified Barnett's attorneys must prove he obtained the documents illegally .
"His job is to zealously represent his clients," said John Coffee, a professor at Columbia University Law School. He added, however, that professional sanctions can be brought against Mr. Alpert if Barnett's lawyers can prove he stole or misappropriated the documents.
In the emergency filing, Barnett seeks to effect the "immediate return and prevent the further misuse of misappropriated confidential documents," according to papers filed in U.S. District Court for the Middle District of Florida. The motion states that immediate action is necessary to protect confidential attorney-client privilege and "work-product immunities from being destroyed."
The documents, which are marked "confidential/privileged/ attorney work product," include communications between Barnett's general counsel, Richard Swartley, and Judith Beaubouef, the bank's chief legal executive.
Mr. Alpert said he has done nothing wrong.
"I got them (the documents) from a variety of sources who obtained them legally and who gave them to me legally," Mr. Alpert said.
He added that he is puzzled by the bank's focus.
"Getting rid of the messenger isn't going to get rid of the message," Mr. Alpert said. "Getting rid of one person is not going to make the problem go away."
In response to the charges that Mr. Alpert's named plaintiff, Justine Brady, was unaware of the risks of investing in mutual funds, Mr. Homer points to the contract Ms. Brady signed when she bought the investments.
Just above her signature is a paragraph, in capital letters, that describes the uninisured nature of securities, including the possible loss of principal.