Disqualifying a Florida Trial Lawyer: Appeals court reverses Broward Judge

When can you disqualify a Florida lawyer ?

If you are involved in Florida litigation, and believe that the other side’s attorney may be a  witness at your trial, consider a recent ruling from a Florida appeals court about disqualifying a Florida trial lawyer.

Why should an estate or Florida trust beneficiary be concerned about this? Why is this even important?

Disqualification of a Florida lawyer is particularly important in a Florida estate, probate or Florida trust case. Florida estate planning attorneys, and probate attorneys, sometimes may have, over the course of providing legal services to Florida clients, been confronted with a potential conflict of interest.

Does the Florida estate planning lawyer represent one spouse or both spouses of the marriage? Does the Florida probate lawyer   represent the personal representative, or the beneficiary —   in his or her individual capacity?   What if a Florida probate lawyer represents a beneficiary of a Florida estate, or the personal representative of the Florida estate, or the trustee of a Florida revocable trust — and needs to testify about the creation of the trust, where the money went, or tortious interference with an inheritance by a Florida beneficiary?   You can see that a Florida beneficiary or a trustee or executor or estate administrator may, conceivably, need to disqualify a Florida lawyer from representing a party to a probate lawsuit — and also keep the Florida lawyer from testifying at a probate trial.    In some cases, the Florida probate lawyer who dealt with the dead Florida resident may be the only one who can testify to facts, and the intent of the person who made the will or created the Florida trust.

Florida Law On Disqualifying Florida Lawyers

Florida law, like most states, wants to defer to an individual client’s right to choose his or her trial lawyer. On the other side of that legal coin, however, Florida courts bend over backwards to provide    fairness    and   objectivity.   Florida courts are very mindful of conflicts of interest and that, at least admittedly, it may not be appropriate for a Florida trial lawyer to continue to represent their client. How does a court balance these interests in preparing for trial? Consider a recent case from a Florida appeals court, the Fourth District Court of Appeals sitting in West Palm Beach, Florida. The Fourth District Court of Appeals hears appeals from the trial courts in Palm Beach County, Martin County, and Broward County, Florida. This particular case involves a Broward County trial.

Can the Other Side Depose Your Florida Trial Lawyer?

A woman filed a lawsuit against defendants seeking damages, and had her Florida lawyer representing her. The defendants sought to take the deposition of the woman’s trial attorney. In Florida, this is unusual. The Florida trial lawyer for a party to a Florida lawsuit is an advocate — typically not a fact witness.   So the woman’s trial attorney did what most Florida lawyers do: filed a motion for a protective order, which was denied by the Broward County trial judge. The Florida trial lawyer testified at his deposition. Why did they want to depose the woman’s Florida trial lawyer? Evidently, the Florida lawyer and his case investigator spoke with an important witness, an employee of one of the defendants. The witness later gave a conflicting of account of the conversation with the trial lawyer and the investigator.

Motion to Disqualify Florida Trial Counsel

One of the defendants then filed a motion to disqualify the woman’s trial counsel, arguing that the Florida lawyer was a necessary witness regarding and admission made by the witness who was interviewed.

Florida Lawyers Can’t Be an Advocate and a Witness

The Florida bar creates and enforces rules regulating the conduct of Florida lawyers. The rules regulating the Florida bar set forth ethical standards which Florida lawyers are required to follow. A lawyer shall not act as an advocate at trial in which the lawyer is likely to be a necessary witness on behalf of a client.

The Broward County judge disqualified the woman’s Florida trial counsel and she appealed to the Florida appeals court by seeking a writ of certiorari.

Here are important points to consider if you are involved in a Florida lawsuit and believe the other side’s lawyer should be disqualified.

1. Disqualification of a Florida attorney is an extraordinary remedy which will only be resorted to sparingly — translation: your back’s up against the wall if you think they’re going to disqualify the other side’s trial attorney
2. a trial judge’s order to disqualify counsel may only be reversed by the Florida appeals court if it departs from the essential requirements of law— translation: if the trial judge exercised reasonable discretion and followed the law, then his or her order disqualifying trial counsel will not be reversed
3. your trial attorney will be prevented from continuing to represent you only under the following circumstances a) if your lawyer is likely to be a necessary witness b) on your behalf. Translation: if you don’t plan to call your own lawyer as witness, the odds of having your lawyer disqualified are slim.

Does the Florida Trial Lawyer Really Need to Testify?

1. Lawyers need to try to avoid “arguing about arguing.” Sometimes, you can get caught up in “winning” or “losing” on a small point, which may not be the best way to spend your client’s legal dollars.
2. Consider why an attorney may or may not need to testify. What point are you trying to make? What fact are you trying to get into evidence? Sometimes the parties can agree by stipulation to a particular fact without someone testify. This can save the litigation client time and lots of money without sacrificing strategy or harming your clients case.  Remember: a Florida lawyer’s duty is to always protect the client and look out for the client’s best interest.
3. Are there other ways to get the fact into evidence? You may be able to prove your facts, or get your facts and evidence in, without the necessity of calling someone’s trial lawyer.
4. A lawyer is not a necessary witness when there are other witnesses available to testify to the same information.

Florida Trial Lawyer Conflicts of Interest

What if the other side wants to call your trial  lawyer as a witness?

If your trial lawyer’s testimony may be harmful to your case – – adverse – – a conflict of interest arises.   However, Florida courts recognize that one party should not try to “play games” and try to have the other side’s trial lawyer disqualified, by faking, or feigning, an intent to call the other side’s trial lawyer as a witness. No, no. That’s an amateur move.

While Florida trial courts are protective of parties to Florida litigation, they want the litigation client to get competent, conflict-free representation in a Florida court. However, Florida judges recognize that the Florida bar rules permit a Florida client to knowingly waive a conflict of interest. Everyone should be looking out for your best interests.  In the end, you get to make the call. Good luck with your trial.

ATTORNEYS AND TRIAL LAWYERS

For a copy of this opinion, please email amanda@pankauskilawfirm.com.