PERRY DAWSON, LINDA FERNANDEZ, DEL HALL, GARY HUSKEY, BENNY MARTINEZ, AND NORMAN TRAINOR, PETITIONERS,
v.
AARON D. BRAM, RESPONDENT
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The Florida District Court of Appeal reversed a trial court's order disqualifying petitioners' counsel based on an unsworn motion alleging prior representation and conflict of interest. The court held that motions to disqualify counsel require sworn allegations, an opportunity for the opposing party to respond with affidavits, and an evidentiary hearing if facts are disputed.
A trial court may not disqualify counsel based on an unsworn motion. The proper procedure requires the disqualification motion to be under oath or supported by affidavit, the opposing party must be given an opportunity to file responsive affidavits, and if the affidavits conflict on material issues, an evidentiary hearing must be conducted.
[1] A motion to disqualify opposing counsel must be supported by an affidavit or be under oath.
[2] Parties must be afforded the opportunity to file affidavits in response to allegations supporting a motion to disqualify opposing counsel.
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Join FLexlaw to unlock all legal intelligence“After consideration of a motion alleging sufficient facts which, if true, would warrant removal of opposing counsel, a trial court may decide that removal is mandated.”
Establishes that disqualification motions require sufficient factual allegations; cites Pantori v. Stephenson for this principle.
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Join FLexlaw to unlock all legal intelligencePetitioners, former board members of a condominium association, sued respondent for defamation. Before answering, respondent filed an unsworn, pro se …
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SCHEB, Acting Chief Judge.
Petitioners seek a writ of certiorari to review a trial court order which granted respondent’s motion to disqualify R. Douglas MacPherson, petitioners’ counsel, from further representation of the petitioners.
Petitioners are the former members of the board of directors of Belleair Beach Resort Owners Association, Inc., a condominium association. Respondent is a member of the current board of directors. Petitioners filed suit against respondent alleging that he wrote and mailed a defamatory letter to petitioners and various third parties.
Before answering the complaint, respondent filed an unsworn, pro se motion in the trial court. Respondent’s principal allegations were that petitioners’ counsel (1) had previously represented respondent in his capacity as president of Belleair, (2) had knowledge received during the course of the attorney-client relationship with respondent, and (3) would be a witness in a related criminal matter. Respondent did not support his motion with any affidavits. At the hearing on respondent’s motion, petitioners’ counsel made some opening remarks suggesting there was no basis for respondent’s allegations. The trial judge declined to hear any testimony stating:
Mr. MacPherson, even if one percent of this is verifiable, I think their [sic] close to this case, I think you’ve been involved in the case and I’m not saying that we should wait until the Florida Bar gives us its opinion on this, but I think to completely eliminate any suspicion of that, I think you should disqualify yourself. I’m going to grant the motion.
The trial judge then allowed MacPherson to proffer some evidence in his own behalf. However, the judge adhered to his ruling and ordered that MacPherson was disqualified from further representation of the petitioners.
After consideration of a motion alleging sufficient facts which, if true, would warrant removal of opposing counsel, a trial court may decide that removal is mandated. Pantori v. Stephenson, 384 So. 2d 1357 (Fla. 5th DCA 1980). Here, the court should have required that respondent’s motion be under oath or supported by an affidavit. Then, the petitioners should have been afforded the opportunity to file affidavits in response to the allegations. See Sears Roebuck & Co. v. Stansbury, 374 So. 2d 1051 (Fla. 5th DCA 1979). If the affidavits filed by the parties did not agree on the issue presented, the court should have conducted an evidentiary hearing. Holland v. Tenenbaum, 360 So. 2d 493 (Fla. 4th DCA 1978). The purpose of an evidentiary hearing is not to determine whether there has been a breach of the Code of Professional Responsibility for which the attorney may be disciplined but to determine whether, because of such breach, one party has an unfair advantage over the other which can only be eliminated by removing the attorney. Pantori, 384 So. 2d at 1359.
We therefore conclude that the trial court departed from the essential requirements of the law in granting respondent’s unsworn motion without first requiring proof of the allegations and then permitting the petitioners to present evidence if any, on their own behalf.
Accordingly, we grant the petition for writ of. certiorari, quash the order, and remand this case to the circuit court for further proceedings consistent with this opinion.
HALL and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Kusch v. Ballard, 645 So. 2d 1035 (Fla. 4th DCA 1994)…on of some rale of law or breach of the Code of Professional Responsibility resulting in an unfair advantage. See General Accident, 483 So. 2d 505 (Fla. 4th DCA 1986); Andrews v. Allstate Ins. Co., 366 So. 2d 462 (Fla. 4th DCA 1978); Dawson v. Bram, 491 So. 2d 1275 (Fla. 2d DCA 1986); Pantori v. Stephenson; and Holland v. Tenenbaum. Indeed, the result may well be different where the trial court finds that the disclosure is not accidental as claimed or is made for some ulterior motive. In such instances, the tr…
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The Sch. Bd. OF Broward Cnty. v. Polera Bldg. Corp., 722 So. 2d 971 (Fla. 4th DCA 1999)…to cases in which the disqualification issue was decided without an evidentiary hearing; however, where material facts are in dispute, an evi-dentiary hearing is required. See Holland v. Tenenbaum, 360 So. 2d 493 (Fla. 4th DCA 1978); Dawson v. Bram, 491 So. 2d 1275 (Fla. 2d DCA 1986); cf., Trautman v. General Motors Corp., 426 So. 2d 1183 (Fla. 5th DCA 1983); Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051 (Fla. 5th DCA 1979). The trial court departed from the essential requirements of law by denying the s…
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Esquire Care, Inc. v. Maguire, 532 So. 2d 740 (Fla. 2d DCA 1988)…purpose of which is to determine, not just whether a potential ethical violation has occurred, but whether as a result one party has obtained an unfair advantage over the other which can only be alleviated by removal of the attorney. Dawson v. Bram, 491 So. 2d 1275 (Fla. 2d DCA 1986); Pantori, Inc. v. Stephenson, 384 So. 2d 1357 (Fla. 5th DCA 1980). In the present case the trial court conducted such a hearing. At this time Walsh’s present secretary testified that she was and had been his “only legal secretary…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sears v. Stansbury, 374 So. 2d 1051 (Fla. 5th DCA 1979)
- Pantori, Inc. v. Stephenson, 384 So. 2d 1357 (Fla. 5th DCA 1980)
- Holland v. Tenenbaum, 360 So. 2d 493 (Fla. 4th DCA 1978)