ARTHUR S. DEVINS, APPELLANT,
v.
IRVING PEITZER, ET AL., APPELLEES
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The court held that an attorney cannot be disqualified from representing a client merely because opposing counsel intends to call the attorney as an adverse witness.
[1] An attorney who supervised the execution of a will may represent the estate in a will contest, even if the opposing party intends to call the attorney as a witness, provi…
[2] A party may not disqualify opposing counsel solely by announcing an intention to call that counsel as an adverse witness.
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Join FLexlaw to unlock all legal intelligenceThe personal representative of an estate sought review of an order disqualifying his counsel, who had supervised the execution of the will in question…
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SCHWARTZ, Chief Judge.
The personal representative of an estate seeks review of an order disqualifying his counsel, Warren Salomon, from representing the estate in a will contest being maintained by the appellees. We treat the appeal as an application for certiorari, see In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA1990), and cases cited, and. quash the order under review.
Salomon acted as the attorney for the decedent in supervising the execution of the will in question. The personal representative has unequivocally stated that he will not call Salomon as his own witness at the trial, see Beavers v. Conner, 258 So. 2d 330 (Fla. 3d DCA1972), and a review of counsel’s deposition reveals that any testimony he might give would not be contrary to the interests of his client. See Allstate Ins. Co. v. English, 588 So. 2d 294 (Fla. 2d DCA1991); Ray v. Stuckey, 491 So. 2d 1211 (Fla. 1st DCA1986); Cazares v. Church of Scientology of California, 429 So. 2d 348 (Fla. 5th DCA1983), pet. for review denied, 438 So. 2d 831 (Fla.1983).
Thus, he may not be disqualified merely because of the opponents’ announced intention to call him as an adverse witness on their behalf. See Arcara v. Philip M. Warren, P.A., 574 So. 2d 325, 326 (Fla. 4th DCA1991) (“[T]he rule requiring a lawyer to withdraw when he expects to be a witness in a case ‘was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.’ ”) (quoting Cazares, 429 So. 2d at 350); Beavers, 258 So. 2d at 330 (opposing counsel may not be disqualified by calling him as adverse witness); Hill v. Douglass, 248 So. 2d 182 (Fla. 1st DCA1971) (same), quashed on other grounds, 271 So. 2d 1 (Fla.1972).
It is clear, therefore, that there is no lawful basis to support the order under review. See Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So. 2d 28 (Fla. 3d DCA1987); Banco De Comercio, S.A.C.A. v. Sun Banks, Inc., 488 So. 2d 870 (Fla. 3d DCA1986); Perez v. State, 474 So. 2d 398 (Fla. 3d DCA1985), review denied, 484 So. 2d 10 (Fla.1986),
Certiorari granted.
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Steinberg v. Winn-Dixie Stores, Inc., 121 So. 3d 622 (Fla. 4th DCA 2013)…to be a witness was not intended to permit an opposing party to call him as a witness and disqualify him from serving as counsel.” AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So. 2d 675, 680 (Fla. 2d DCA 2006); see also Devins v. Peitzer, 622 So. 2d 558, 558 (Fla. 3d DCA 1993) (holding that defendant’s announced intention to call plaintiffs counsel as a witness is not a basis for disqualification). A conflict requiring disqualification, however, could arise if an opposing party called trial counse…
Authorities Cited (13 total)
- Bonfiglio v. Hampton, 574 So. 2d 325 (Fla. 4th DCA 1991)
- Cazares v. The Church OF Scientology OF Cal., Inc., 429 So. 2d 348 (Fla. 5th DCA 1983)
- In re Est. OF Frank A. Gory, Sr., 570 So. 2d 1381 (Fla. 4th DCA 1990)
- J.R. RAY, Jr. v. Talmadge & Reva Stuckey & Ortega Executive Ctr., Ltd., 491 So. 2d 1211 (Fla. 1st DCA 1986)
- Beavers v. Conner, 258 So. 2d 330 (Fla. 3d DCA 1972)
- Hill v. Douglass, 271 So. 2d 1 (Fla. 1972)
- Hill v. Douglass, 248 So. 2d 182 (Fla. 1st DCA 1971)
- Allstate Ins. Co. v. English, 588 So. 2d 294 (Fla. 2d DCA 1991)
- Perez v. State, 474 So. 2d 398 (Fla. 3d DCA 1985)
- Objective Mktg. Action, Ltd. v. Hills, 516 So. 2d 28 (Fla. 3d DCA 1987)