Florida Lawyer Disqualification + Conflict of Interest
Filing a motion with the court to disqualify your opposing counsel is serious stuff. A March 26, 2021 opinion from the 5th District Court of Appeal, Florida, sheds light on this. We have previously discussed ATTORNEY CONFLICT OF INTEREST before. Now, let’s get an update.
Lawyers and Ethical Duties
The Florida Bar imposes many ethical duties on lawyers. They can be found HERE. Check out Chapter 4 on Professional Conduct. Not only is a lawyer required to be loyal to clients, and work hard, but you should avoid conflicts of interest. A Florida lawyer who is “adverse” to an existing client may be disqualified from that case. After all, a Florida attorney is not supposed to be adverse to, or against, an existing client. In other words, lawyers don’t sue clients. Or take a position that hurts a client. Now, this does NOT mean that a lawyer has to do everything a client wants. We are not talking about a sincere fundamental disagreement on a case, for example. In many situations, a Florida attorney is also prohibited from being adverse, or against, many former clients. A March 26, 2021 Florida Lawyer Disqualification opinion was issued by the 5th District Court of Appeal. To read this opinion CLICK HERE. This DCA case also speaks about lawyers’ conflicts of interest.
Florida Probates + Florida Lawyer Disqualification
We have previously written about Florida probate matters and Florida Lawyer Disqualification . And there has been good legal commentary on CONFLICTS OF INTEREST. Perhaps one of the most glaring conflicts of interest is when a Florida probate lawyer inherits from the estate. Or, should I say, a potential conflict of interest. One major area of controversy in the Florida Estate Planning world is GIFTS TO LAWYERS. There is a Probate Law 732.806 which addresses this issue. Is it ethical for a lawyer to write a will and write herself in? Is it proper for a lawyer to write a trust and he gets an inheritance?
Florida Law on Disqualifying a Lawyer
To disqualify a lawyer and keep her from being “against ” you, you have to file a motion. A motion to disqualify a Florida lawyer will only be granted sparingly. There is a strong policy to permit Florida residents to select the counsel of their choosing . But going against this policy is the right to keep your own lawyer from being adverse to you. After all, the argument goes, there are many really good lawyers in Florida. Why does mine have to sue me or be adverse to me? Great question ! Often, if a lawyer is a material witness, she will not be permitted to represent someone in the case. An advocate should not be a material fact witness, right? See Florida Bar Rule 4-3.7. A lawyer has a duty to avoid conflicts of interest. And a lawyer who has conflict of interest should not be permitted to try a case. A court will consider the subject matter of what you hired your lawyer for. It will also consider the subject matter of the pending trial or matter, right now. See Rule 4-1.7, Rules Regulating The Florida Bar. In the end, talk to an experienced trial attorney who has dealt with ethical rules and duties of lawyers. She can give you some insight on your Florida Lawyer Disqualification issue– as long as there are no conflicts of interest.