TEENA HERSCHOWSKY, PETITIONER,
v.
THE GUARDIANSHIP OF JULIUS HERSCHOWSKY, WARD, RESPONDENT
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Teena Herschowsky, daughter of a ward in a guardianship proceeding, challenged a trial court order disqualifying her attorney, John Fenner, who had previously represented the ward. The appellate court held that prior representation alone does not create a conflict of interest and that the trial court applied the wrong legal standard, thus quashing the disqualification order.
The court held that prior representation alone does not create a conflict of interest and that the trial court abused its discretion by applying a 'best interests' analysis rather than the proper legal standard under Rule 4-1.9 of the Florida Bar Rules governing conflicts of interest. Disqualification requires demonstrating that the attorney's current representation is on matters adverse to the former client's interests.
[1] Certiorari is an appropriate remedy to review a trial court order granting a motion to disqualify counsel, provided the movant demonstrates a departure from the essential…
[2] Disqualification of counsel, contrary to the wishes of both the attorney and the client, should be ordered only rarely.
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“It is well settled that disqualification, contrary to the wishes of counsel and client, should be resorted to rarely.”
Establishes the high bar for disqualifying counsel and the deference owed to the client's choice of attorney.
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Join FLexlaw to unlock all legal intelligenceTeena Herschowsky is the daughter of Julius Herschowsky, the ward in a guardianship proceeding in Broward County circuit court. Attorney John Fenner r…
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PER CURIAM.
Petitioner Teena Herschowsky seeks certiorari review of a Broward County circuit court order which granted Erica Levine and Norman Herschowsky’s motion to disqualify petitioner’s counsel, Attorney John Fenner. We grant this petition and quash the order of disqualification.
Petitioner is the daughter of Julius Her-schowsky, the ward in a guardianship proceeding in Broward County circuit court. Attorney Fenner represents petitioner insofar as she seeks to locate additional assets belonging to the ward and other related matters. Erica Levine, granddaughter of the ward, filed, as an interested person, a motion to disqualify Attorney Fenner. The trial court heard argument on the motion and announced at its conclusion that Fenner’s appearance was unnecessary, unwarranted and “certainly not in the best interest of the ward.” In a written order of disqualification which followed, the court stated that it was granting Levine’s motion because Fenner had previously represented the ward, and prepared the ward’s durable power of attorney and last will and testament.
Certiorari lies to review a trial court order granting a motion to disqualify counsel. The movant must demonstrate a departure from the essential requirements of law resulting in irreparable harm. See Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997).
It is well settled that disqualification, contrary to the wishes of counsel and client, should be resorted to rarely. See Arcara v. Philip M. Warren, PA., 574 So. 2d 325 (Fla. 4th DCA 1991). The trial court has discretion in ruling on a motion to disqualify counsel. The movant seeking disqualification must prove the necessity for this remedy. See Swensen’s Ice Cream Co. v. Voto, Inc., 652 So. 2d 961 (Fla. 4th DCA 1995).
Petitioner has demonstrated an abuse of the trial court’s discretion in this case, which rises to the level of a departure from the essential requirements of law. By suggesting at the hearing a “best interests” analysis, the probate judge in this case focused on the wrong legal standard.
Application of Rule 4-1.9 of the Rules Regulating the Florida Bar, governing conflict of interest, revealed the absence of a conflict of interest with Attorney Fenner. Respondent Erica Levine failed to demonstrate that Fenner was representing petitioner in a matter adverse to the interests of his former client, the ward. Indeed, the probate judge conceded at the hearing on the motion to disqualify that there was no conflict of interest in this case.
The written order granting disqualification did find that Fenner had previously represented the ward, but failed to find that his representation in the subsequent proceedings was on matters adverse to the ward’s interests. Prior representation alone does not create a conflict of interest.
Petitioner has demonstrated a departure from the essential requirements of law causing material harm which cannot be remedied on appeal. Accordingly, the petition is granted and the order'quashed.
STEVENSON, GROSS and MAY, JJ„ concur.
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Moriber v. Dreiling, 95 So. 3d 449 (Fla. 3d DCA 2012)…, the appellate court will not substitute its judgment for the trial court’s express or implied findings of fact which are supported by competent substantial [*454] evidence.”) (citation omitted); see also Herschowsky v. Guardianship of Herschowsky, 890 So. 2d 1246, 1247 (Fla. 4th DCA 2005) (“The trial court has discretion in ruling on a motion to disqualify counsel.... Petitioner has demonstrated an abuse of the trial court’s discretion in this case, which rises to the level of a departure from the essential…
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In re Jane DOE 06-C, 948 So. 2d 30 (Fla. 1st DCA 2006)…e, e.g., Coral Reef of Key Biscayne Developers, Inc. v. Lloyd’s Underwriters at London, 911 So. 2d 155 (Fla. 3d DCA 2005); Whitener v. First Union Nat’l Bank of Florida, 901 So. 2d 366 (Fla. 5th DCA 2005); Herschowsky v. Guardianship of Herschowsky, 890 So. 2d 1246 (Fla. 4th DCA 2005). In the present case, there was no necessity for the disqualification of the appellant’s counsel. Although the trial judge referenced three authorities for her ruling. — (1) the Parental Notice of Abortion Act, which appears at s…
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State v. DE LA OSA, 28 So. 3d 201 (Fla. 4th DCA 2010)…52 So. 2d 313 (Fla. 4th DCA 2003); Matluck v. Matluck, 825 So. 2d 1071, 1072 (Fla. 4th DCA 2002). The party seeking disqualification of counsel has the burden of proving that disqualification is necessary. Herschowsky v. Guardianship of Herschowsky, 890 So. 2d 1246, 1247 (Fla. 4th DCA 2005). Although the state has cited civil cases supporting its contention that disqualification is necessary, the test for disqualification of counsel in a civil case does not apply in a criminal case where the defendant’s Sixth…
Authorities 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)
- Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997)