RICHARD KEITH ARTHUR, APPELLANT,
v.
SAMUEL GIBSON, LILLI GIBSON, ET AL., APPELLEES
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Richard Keith Arthur appealed a trial court's denial of his motion to disqualify opposing counsel based on an alleged conflict of interest. The appellate court concluded the appeal was not cognizable under the applicable rule and treated it as a petition for writ of certiorari, which it denied.
The appeal was not cognizable under Florida Rule of Appellate Procedure 9.130, but the court treated it as a petition for writ of certiorari and denied the writ. The trial court's denial of the disqualification motion was affirmed because Arthur failed to provide a transcript of the hearing, requiring the appellate court to presume the correctness of the trial court's ruling.
[1] An appeal of a non-final order denying a motion to disqualify counsel is not cognizable under Florida Rule of Appellate Procedure 9.130 unless it falls within one of the…
[2] An appellate court may treat an improper appeal as a petition for writ of certiorari if the appellant seeks an improper remedy.
Previewing 2 of 6 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 trial court does have the authority to disqualify an attorney from representing a party if the court determines that the continued representation would deprive the litigants of "an impartial forum in which their complaints and defenses may be presented, heard and decided with fairness."”
Establishes the legal standard for disqualification of counsel based on conflicts of interest
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Join FLexlaw to unlock all legal intelligenceArthur was sued for damages arising from the sale of unregistered securities. During trial, Arthur moved to disqualify opposing counsel's law firm, al…
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THOMPSON, Judge.
Richard Keith Arthur appeals a non-final order of the trial court denying his motion to disqualify counsel. He filed this appeal pursuant to Florida Rules of Appellate Procedure 9.130. After a careful review of rule 9.130, we conclude that Arthur’s appeal is not cognizable under this rule. The applicability of review under this rule is narrowly circumscribed, and Arthur seeks an improper remedy. Arthur’s appeal of this non-final order does not come within one of the exceptions of the rule. Thus, the order is nonappealable. See Fla.R.App.P. 9.130(a)(3), (4), (5), (6). Nevertheless, we elect to treat Arthur’s appeal as a petition for writ of certiorari, but we deny the writ. See Fla. R.App.P. 9.040(c).1
Arthur was sued for damages arising from the sale of unregistered securities. During the trial, Arthur sought to have opposing counsel’s law firm disqualified based upon an alleged conflict of interest pursuant to Rule 4-1.9 of the Florida Rules of Professional Conduct.2 R. Regulating Fla.Bar 4-1.9. Arthur alleged that one of the attorneys in opposing counsel’s law firm had represented him in a related civil action and, therefore, that an attorney/client relationship had developed. The trial court conducted an evidentiary hearing on the motion. After reviewing affidavits and letters, and hearing the testimony of witnesses, the trial court found that no attorney/client relationship ever developed between Arthur and the attorneys he sought to disqualify.
A trial court does have the authority to disqualify an attorney from representing a party if the court determines that the continued representation would deprive the litigants of “an impartial forum in which their complaints and defenses may be presented, heard and decided with fairness.” Pantori, Inc. v. Stephenson, 384 So. 2d 1357,1359 (Fla. 5th DCA 1980). The trial court must, however, conduct a hearing before ruling on the motion for disqualification.
In this case, the trial court conducted a hearing before denying the motion to disqualify. Because Arthur has the burden of providing this court with a transcript of the hearing, which he did not, we presume the correctness of the trial court’s ruling. The appellant has the burden of demonstrating error by the trial court, and Arthur has not met his burden. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979); accord Hudson Pest Control, Inc. v. Westford Asset Management, Inc., 622 So. 2d 546 (Fla. 5th DCA 1993) (where there is no transcript of trial court proceeding, appellate court will give utmost credence to trial court’s fact findings). Accordingly, we deny the petition for writ of certiorari.
PETERSON and GRIFFIN, JJ., concur. . Rule 9.040(c) reads in pertinent part:
If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.
Fla.R.App.P. 9.040(c).
. Rule 4-1.9 regarding conflicts of interest with former clients, reads:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.
R. Regulating Fla.Bar 4-1.9.
Cases With Similar Vibessemantic neighbors from the corpus
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Anderson Trucking Serv., Inc. v. Gibson, 884 So. 2d 1046 (Fla. 5th DCA 2004)…ct procedure in this case and did not depart from the essential requirements of the law. I further note there is no transcript of the disqualification hearing, so particular deference is owed to the trial court’s factual findings. Arthur v. Gibson, 654 So. 2d 983 (Fla. 5th DCA 1995). The determinative issue is whether there are potentially adverse interests. Respondents cite two compelling ones: (1) if ICE/Anderson is found vicariously hable, Minchew’s personal assets will be protected in case the verdict e…
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Carnival Corp. and/or Carnival Cruise Lines, Inc. v. Romero, 710 So. 2d 690 (Fla. 5th DCA 1998)…ng to disqualify counsel are generally reviewable by certiorari. See, e.g., Double T Corp. v. Jalis Development, Inc., 682 So. 2d 1160 (Fla. 5th DCA 1996) (certiorari granted and order denying motion to disqualify counsel quashed); Arthur v. Gibson, 654 So. 2d 983 (Fla. 5th DCA 1995) (appeal of order denying disqualification of counsel treated as certiora-ri and denied); Tuazon v. Royal Caribbean Cruises, Inc., 641 So. 2d 417 (Fla. 3d DCA 1994) (certiorari review of order disqualifying attorney denied, as dis…
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Scotty's, Inc. v. Olivieri, 713 So. 2d 1020 (Fla. 5th DCA 1998)…proper objection was made by Scotty’s or that a sufficient showing of need and undue hardship was made. Inapro, Inc. v. Alex Hofrichter, P.A., 665 So. 2d 279 (Fla. 3d DCA 1995), rev. dismissed, 675 So. 2d 120 (Fla. 1996). See also Arthur v. Gibson, 654 So. 2d 983 (Fla. 5th DCA 1995) (certiorari denied where petitioner failed to supply transcript of hearing, so correctness of trial court’s ruling must be presumed). The burden of showing the appellate court that the trial court’s order departed from the essen…
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
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Pantori, Inc. v. Stephenson, 384 So. 2d 1357 (Fla. 5th DCA 1980)
- Hudson Pest Control, Inc. v. Westford Asset Mgmt., Inc., 622 So. 2d 546 (Fla. 5th DCA 1993)