BETH S. BY HER NEXT FRIENDS AND ATTORNEYS, TERRY DEMEO AND RENA WISOTSKY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PETITIONERS.
v.
GRANT ASSOCIATES, INC., A FLORIDA CORPORATION D/B/A GRANT CENTER HOSPITAL AND TREATMENT CENTER, LEE HABER, AS ADMINISTRATOR OF GRANT CENTER HOSPITAL AND TREATMENT CENTER, RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A Florida appellate court reversed a trial court's disqualification of counsel representing an indigent client in a medical malpractice suit, holding that a lawyer may continue representation even if deposed as a witness when the testimony relates to uncontested matters not prejudicial to the client's case, particularly where the client is insolvent and counsel serves pro bono.
A lawyer is not required to withdraw or decline employment when the lawyer's testimony relates to an uncontested matter that is not prejudicial to the client, particularly where the client is insolvent and unable to retain other counsel and the lawyer serves pro bono. The disqualification order was an improper departure from essential requirements of law.
[1] A lawyer may continue to represent a client in litigation even if the lawyer is called as a witness, provided the testimony relates solely to an uncontested matter.
[2] Disqualification of counsel is not required when the lawyer's testimony concerns an uncontested matter that is not essential or prejudicial to the client's theory of liab…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a lawyer is not required to decline employment or withdraw as counsel in a case because the lawyer will be a witness in the case where, as here, the lawyer's testimony relates to an uncontested matter which is not prejudicial to the client”
The court's principal holding establishing the standard for when lawyer testimony does not require disqualification
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBeth S., an insolvent client, retained counsel on a pro bono basis to sue Grant Associates, Inc. and others. Respondents deposed counsel and elicited …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Pro Bono Representation cases and more on FLexlaw
PER CURIAM.
This is an original petition for a writ of certiorari to review a trial court order disqualifying certain counsel from representing the petitioner Beth S., in a suit filed below against the respondents Grant Associates, Inc., et al. We have jurisdiction to entertain this petition. Art. V, § 4(b)(3), Fla. Const.; DeArce v. State, 405 So. 2d 283 (Fla. 1st DCA 1981).
The sole basis for counsel’s disqualification below is that the respondents have deposed counsel in the cause and have elicited testimony relating to one count of a five-count complaint filed herein, thereby allegedly making counsel potential witnesses on substantive matters in the cause and ineligible to proceed as counsel in this case. We have carefully examined the record, however, and have concluded that counsels’ testimony relates to an uncontested matter which is in no way essential or prejudicial to petitioner’s theory of liability under the subject count of the complaint. Plainly, a lawyer is not required to decline employment or withdraw as counsel in a case because the lawyer will be a witness in the case where, as here, the lawyer’s testimony relates to an uncontested matter which is not prejudicial to the client. Fla.Bar Code Prof.Resp., D.R. 5-101(B)(1);1 D.R. 5-102 (1970).2 Moreover, this result is particularly compelled where, as here, the client is insolvent, unable to retain counsel, and counsel is serving on a pro bono basis. Id., D.R. 5-101(B)(4).3 For these reasons, the order of disqualification under review constitutes a departure from essential requirements of law and must be quashed.
The petition for a writ of certiorari is granted, the order under review is quashed, and the cause is remanded to the trial court for further proceedings.
. Fla.Bar Code Prof.Resp., D.R. 5-101(B)(l):
“A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter.”
. Fla.Bar Code Prof.Resp., D.R. 5-102:
“(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”
.Fla.Bar Code Prof.Resp., D.R. 5-101(B)(4):
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
In re Est. OF Frank A. Gory, Sr., 570 So. 2d 1381 (Fla. 4th DCA 1990)…er which improperly disqualifies counsel. Ocean Club Condo Ass’n v. Estate of Daly, 504 So. 2d 1377 (Fla. 4th DCA 1987); Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So. 2d 23 (Fla. 3d DCA 1987); Beth S. v. Grant Associates, Inc., 426 So. 2d 1008 (Fla. 3d DCA 1983). The rationale for review- by certiorari in such eases is that a litigant improperly deprived of the lawyer of his choice is irreparably harmed. It is true that none of these cases arose in a probate setting, but we see no logical…
-
Ocean Club OF Palm Beach Shores Condo. Ass'n, Inc. v. Est. OF Betty C. Daly, 504 So. 2d 1377 (Fla. 4th DCA 1987)…ury to petitioner throughout the remainder of these proceedings, which injury cannot be adequately remedied by plenary appeal. Thus, the writ of certiorari is the appropriate remedy to review the order in question. Beth S. v. Grant Associates, Inc., 426 So. 2d 1008 (Fla. 3d DCA 1983); Holland v. Tenenbaum, 360 So. 2d 493 (Fla. 4th DCA 1979). Reid & Ricca’s representation of Ocean Club, the condominium association for all of the unit owners, is not impaired by the fact that the association is involved in liti…
-
Hilsenroth v. Judah Burstyn & Eileen Burstyn & H.B.C. Realty, Inc., 432 So. 2d 640 (Fla. 4th DCA 1983)…e appropriate appellate procedure in such matter is a petition for writ of certiorari. See Andrews v. Allstate Insurance Co., 366 So. 2d 462 (Fla. 4th DCA 1978); DeArce v. State, 405 So. 2d 283 (Fla. 1st DCA 1981); Beth S. v. Grant Associates, Inc., 426 So. 2d 1008 (Fla. 3d DCA 1983); Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051 (Fla. 5th DCA 1979). We consider this appeal as such a petition. Procedural due process having been accorded and there being no departure from the essential requirements of law…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DeARCE v. State, 405 So. 2d 283 (Fla. 1st DCA 1981)