ROBIN CERILLO AND ROBERT DELANEY, PETITIONERS,
v.
RICHARD BEARD HIGHLEY AND BETTY J. STEELE, ETC., RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A lawyer who is likely to be a necessary witness at trial is not disqualified from participating in pre-trial proceedings.
Petitioners, plaintiffs in a battery action, sought to quash an order disqualifying their lawyer because he was a witness to the battery. The lawyer's…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Attorney As Witness cases and more on FLexlaw
PER CURIAM.
Petitioners are plaintiffs in a civil action for battery. The trial court granted respondents’ motion to disqualify their lawyer because he was a witness to the battery, which occurred in the courthouse. Petitioners seek certiorari, which is the appropriate remedy to quash an order improperly disqualifying counsel. Ocean Club of Palm Beach Shores Condo. Ass’n, Inc. v. Estate of Daly, 504 So. 2d 1377 (Fla. 4th DCA 1987).
Petitioners argue that there were other witnesses to the battery and that their counsel 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 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).
See also Fleitman v. McPherson, 691 So. 2d 37 (Fla. 1st DCA 1997). We therefore quash the order disqualifying counsel from participating in pre-trial proceedings. He cannot, however, try the case if he will be a witness at trial.
WARNER, KLEIN and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003)…o 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 quashing order disqualifying counsel from participating in pre-trial proceedings); Fleitman v. McPherson, 691 So. 2d 37 (Fla. 1st DCA 1997). Granted in part and denied in part. SHAHOOD and TAYLOR, JJ., concur. KL…
-
KMS Rest. Corp v. Searcy, 107 So. 3d 552 (Fla. 4th DCA 2013)…in the underlying case. The trial court’s order departs from the essential requirements of law because it is not limited to disqualifying counsel from representing KMS at trial. Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003); Cerillo v. Highley, 797 So. 2d 1288 (Fla. 4th DCA 2001). The fact that counsel will be a material witness does not preclude him from participating in proceedings before and after trial. Accordingly we grant this petition and quash the trial court’s order. MAY, C.J., GERBER and CON…
-
Lieberman v. Lieberman, 160 So. 3d 73 (Fla. 4th DCA 2014)…r pre-trial, trial, and post-trial proceedings. See KMS Rest. Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley P.A., 107 So. 3d 562, 552 (Fla. 4th DCA 2013) (citing Graves v. Lapi, 834 So. 2d 359, 360 (Fla. 4th DCA 2003), and Cerillo v. Highley, 797 So. 2d 1288, 1289 (Fla. 4th DCA 2001)). Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and therein recognize that the order of disqualification was impermissib…
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)
- Ocean Club OF Palm Beach Shores Condo. Ass'n, Inc. v. Est. OF Betty C. Daly, 504 So. 2d 1377 (Fla. 4th DCA 1987)
- Ugo Columbo v. Puig, 745 So. 2d 1106 (Fla. 3d DCA 1999)