SINGER ISLAND LTD., INC., PETITIONER,
v.
BUDGET CONSTRUCTION CO., INC., RESPONDENT
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Singer Island Ltd. sought a writ of certiorari to disqualify opposing counsel in a breach of construction contract case on grounds that counsel would be a material witness. The court denied the petition, holding that the owner failed to establish a sufficient basis for this extraordinary remedy at the preliminary stage.
The court held that the trial court correctly denied the motion to disqualify because the petitioner alleged at most only a possibility that disqualification might be necessary, rather than establishing that disqualification was actually required at that stage of proceedings.
[1] Disqualification of a party's chosen counsel is an extraordinary remedy to be resorted to sparingly.
[2] Motions to disqualify opposing counsel based on their potential status as a material witness are viewed with skepticism due to potential tactical or harassing motives.
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Join FLexlaw to unlock all legal intelligence“Disqualification of a party's chosen counsel is an extraordinary remedy and should only be resorted to sparingly.”
Establishes the high bar for disqualification motions and the court's skeptical view of such motions
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Join FLexlaw to unlock all legal intelligenceThis is a breach of construction contract dispute between an owner (Singer Island) and a contractor (Budget Construction). The central dispute is whet…
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KLEIN, Judge.
Petitioner seeks a writ of certiorari to quash an order denying its motion to disqualify counsel for the respondent on the ground that he will be a material witness in the case. We deny the petition.
This is a breach of construction contract case. According to petitioner owner, the issue will be whether the respondent contractor voluntarily left a job in progress or, stopped working because it was dismissed by the owner. The owner moved to disqualify the contractor’s counsel because he will be a material witness in that he was representing the contractor and writing letters at the time the dispute arose before construction had been completed. The motion to disqualify alleges that counsel will therefore have to be deposed about the communications which are at the heart of the case.
Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly. Swensen’s Ice Cream, v. Voto, Inc., 652 So. 2d 961 (Fla. 4th DCA 1995) and Fleitman v. McPherson, 691 So. 2d 37 (Fla. 1st DCA 1997). We view motions to disqualify on this ground with some skepticism, because they are sometimes filed for tactical or harassing reasons, rather than the proper reason, rule 4-3.7, Rules Regulating the Florida Bar. See Arcara v. Philip M. Warren, P.A., 574 So. 2d 325 (Fla. 4th DCA 1991) (citing Galarowicz v. Ward, 119 Utah 611, 230 P. 2d 576 (1951)(object of canon of ethics that lawyer should avoid testifying was to avoid putting attorney in predicament of having to argue credibility of his own testimony; not to permit an attorney to call opposing counsel as witness and thereby disqualify opposing counsel)).
The trial court correctly denied the motion to disqualify because the petitioner alleged, at most, only a possibility that disqualification might be necessary. If petitioner had waited until after he had deposed opposing counsel, he might have been able to develop more of a record to support his motion to disqualify. On the other hand, counsel’s testimony might well have convinced petitioner that a motion to disqualify would not have been well-founded. At this point in the proceedings, however, the petitioner did not make a case for disqualification, and we deny the petition.
POLEN and TAYLOR, JJ., concur.
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Applied Digit. Solutions, Inc. v. Hark Vasa, 941 So. 2d 404 (Fla. 4th DCA 2006)…lexander v. Tandem Staffing Solutions, Inc., 881 So. 2d 607, 608-09 (Fla. 4th DCA 2004): “Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Singer Island, Ltd. v. Budged, Constr. Co., 714 So. 2d 651, 652 (Fla. 4th DCA 1998); Vick v. Bailey, 777 So. 2d 1005, 1007 (Fla. 2d DCA 2000). Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and s…
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Alexander v. Tandem Staffing Solutions, Inc., 881 So. 2d 607 (Fla. 4th DCA 2004)…cation of a lawyer because of the tactical disadvantage that such disclosure may produce. “Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Singer Island, Ltd. v. Budget Constr. Co., 714 So. 2d 651, 652 (Fla. 4th DCA 1998); Vick v. Bailey, 777 So. 2d 1005, 1007 (Fla. 2d DCA 2000). Motions for disqualification are generally viewed with skepticism [*609] because disqualification of counsel impinges on a party’s right to employ a lawyer of choice…
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Manning v. Cooper, 981 So. 2d 668 (Fla. 4th DCA 2008)…Alexander v. Tandem Staffing Solutions, Inc., 881 So. 2d 607, 608-09 (Fla. 4th DCA 2004): “Disqualification of a party’s chosen counsel is an extraordinary remedy and should only be resorted to sparingly.” Singer Island, Ltd. v. Budget Constr. Co., 714 So. 2d 651, 652 (Fla. 4th DCA 1998); Vick v. Bailey, 777 So. 2d 1005, 1007 (Fla. 2d DCA 2000). Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and s…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bonfiglio v. Hampton, 574 So. 2d 325 (Fla. 4th DCA 1991)
- Swensen's ICE Cream Co. v. Voto, Inc., 652 So. 2d 961 (Fla. 4th DCA 1995)
- Fleitman v. Virginia McPHERSON (individually and as President, 691 So. 2d 37 (Fla. 1st DCA 1997)