UGO COLUMBO, PETITIONER,
v.
DORA PUIG, RESPONDENT
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Columbo sought a writ of certiorari challenging the trial court's disqualification of his counsel, Burstyn, from representing him. The court held that while Rule 4-3.7 prohibits a lawyer from acting as an advocate at trial when likely to be a necessary witness, it does not prohibit pre-trial or post-trial participation, and therefore Burstyn's disqualification was erroneous.
A lawyer may not be disqualified from pre-trial or post-trial proceedings solely because he is likely to be a necessary witness at trial. Rule 4-3.7's prohibition on acting as an advocate applies only to trial itself, permitting participation in all proceedings before and after trial. The other grounds asserted for disqualification—ownership interest in a co-defendant, perception as employer, and prior investigation—do not provide legal or ethical bases for disqualification.
[1] A lawyer may act as an advocate in pre-trial and post-trial proceedings even if the lawyer is likely to be a necessary witness at trial.
[2] A client's consent to continued representation after consultation permits a lawyer to continue representation when the lawyer's own interests could affect the representat…
Previewing 2 of 5 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 shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client." The key words here are "at a trial." Therefore, it follows that a lawyer may act as an advocate at pre-trial (before the start of the trial) and post-trial (after the judgment is rendered) proceedings.”
Establishes the court's interpretation that Rule 4-3.7's witness prohibition applies only to trial itself, not to pre-trial proceedings like depositions.
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Join FLexlaw to unlock all legal intelligencePuig sued Columbo for breach of contract, defamation, and intentional infliction of emotional distress. Columbo retained Burstyn as counsel. When Burs…
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PER CURIAM.
Ugo Columbo petitions for a writ of certiorari claiming his counsel was erroneously disqualified from representing him. We grant the petition and quash the order under review.
In the underlying lawsuit, Dora Puig sued Colombo for breach of contract, defamation, and intentional infliction of emotional distress. Columbo retained Burstyn as one of his lawyers for this lawsuit. Burstyn intended to depose Puig; Puig objected and moved to disqualify Burstyn. Puig alleged that she would call Burstyn as a witness, that he had an ownership interest in one of the co-defendants, that she perceived him as her employer1 and that he possessed special knowledge he would use to her disadvantage. The trial court granted Puig’s motion to disqualify Burstyn from representing Columbo at Puig’s deposition and at the trial. Colum-bo then filed this petition for Writ of Cer-tiorari.
The trial court erred in disqualifying Burstyn from deposing Puig. According to Puig, Burstyn will likely be a necessary witness at trial. Rule 4-3.7 of the Rules of Professional Conduct provides that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” The key words here are “at a trial.” Therefore, it follows that a lawyer may act as an advocate at pre-trial (before the start of the trial) and post-trial (after the judgment is rendered) proceedings. See also ABA Comm, on Ethics and Profl Responsibility, Informal Op. 89-1529.(1989) (lawyer may take depositions of witnesses and engage in other pre-trial proceedings as long as other requirements of the Rules are met).
In a similar case to this one, a plaintiff in a defamation action sought to disqualify an entire law firm where one attorney would be called as a witness in the trial. Fleitman v. McPherson, 691 So. 2d 37 (Fla. 1st DCA 1997). The Fleitman court allowed the disqualification of the one attorney but only from participation at trial. Id. at 38. The court permitted the attorney to participate in proceedings up until the trial and proceedings after the trial. Id. Likewise here, Burstyn should be permitted to represent Colum-bo in any proceedings before trial and after trial without running afoul of the Rules of Professional Conduct.
Puig’s remaining arguments for disqualification do not sway us from this position. Burstyn’s ownership interest in a co-defendant does not prejudice Puig. While this financial interest could possibly impair Burstyn’s loyalty to Columbo, his client, Columbo has not objected to Burs-tyn’s continued representation. If the client consents after consultation, Rule 4-1.7 permits a lawyer to continue representation where the lawyer’s own interests could affect his representation of the client. Puig’s view of Burstyn as her boss does not present a legal or ethical basis for disqualification; if this were so, an attorney could never represent herself in any action involving an employee (for example, worker’s compensation or unemployment compensation hearings). Burstyn did speak with Puig prior to the initiation of the lawsuit; however, this is not special knowledge possessed only by Burstyn. The communication was placed on record. Additionally, to disqualify Burstyn for investigating prior to the actual filing of the lawsuit would hinder a lawyer’s practice of investigating any potential case for his client.
For the above reasons, we grant the petition and direct the trial court to allow Burstyn to participate in pre-trial, including Puig’s deposition, and post-trial proceedings of this cause.
CERTIORARI GRANTED; ORDER QUASHED; REMANDED WITH DIRECTIONS.
. Puig worked for Columbo and his company as a real estate salesperson. On behalf of the company, Burstyn interviewed Puig, in the presence of a court reporter, as part of the company’s internal investigation into Puig’s real estate activities.
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Chadwick Willacy v. State, 967 So. 2d 131 (Fla. 2007)…in which the lawyer is likely to be a necessary witness on behalf of the client.” (Emphasis supplied.) However, this rule does not mandate the withdrawal of counsel who must testify in a post-trial hearing such as occurred here. See Columbo v. Puig, 745 So. 2d 1106, 1107 (Fla.3d DCA 1999). The hearing on Willacy’s motion for new trial was a very limited, post-trial evidentiary hearing regarding juror Clark’s status and whether information about juror Clark was exchanged between opposing counsel. The Erlenbachs…
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Cerillo v. Highley, 797 So. 2d 1288 (Fla. 4th DCA 2001)…will not necessarily be a witness at trial. More to the point is their contention that the fact that counsel may be a witness at trial does not disqualify counsel from participating in pretrial proceedings. As the court explained in Columbo v. Puig, 745 So. 2d 1106, 1107 (Fla. 3d DCA 1999): The trial court erred in disqualifying Burstyn from deposing Puig. According to Puig, Burstyn will likely be a necessary witness at trial. Rule 4-3.7 of the Rules of Professional Conduct provides that a “lawyer shall not…
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Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003)…rthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). However, we conclude that the order was too broad in not limiting the disqualification to trial advocacy, an issue which petitioners clearly raised below in their reply to the motion. See Columbo v. Puig, 745 So. 2d 1106, 1107 (Fla. 3d DCA 1999) (interpreting rule’s key words “at trial” to mean that counsel should be permitted to represent party “in any proceedings before trial and after trial”); Cerillo v. Highley, 797 So. 2d 1288 (Fla. 4th DCA 2001) (specifically…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fleitman v. Virginia McPHERSON (individually and as President, 691 So. 2d 37 (Fla. 1st DCA 1997)