LAURA MCCARTHY, INC., APPELLANT,
v.
MERRILL-LYNCH REALTY/COUSINS, INC., APPELLEE
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Laura McCarthy, Inc. sought certiorari review of a trial court order disqualifying its counsel Dan Koppen from representing it in pending litigation. The appellate court granted the petition and quashed the disqualification order, finding that the trial court lacked sufficient legal grounds to disqualify counsel.
The disqualification order was improper because: (1) Koppen was representing the petitioner, not Chorlton, and gave no legal advice to her; (2) Koppen is not an essential witness because Merrill Lynch can establish details of the conversation through Chorlton's testimony and may call Koppen as a witness at trial; and (3) no prejudice to the respondent could be shown.
[1] A court order disqualifying counsel is quashed when the attorney did not represent the opposing party and gave no legal advice to that party.
[2] An attorney is not an essential witness for disqualification purposes when the opposing party can establish the details of a conversation through another witness.
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Join FLexlaw to unlock all legal intelligence“Mr. Koppen was, in fact, representing the petitioner, not Ms. Chorlton, when he had his above-stated conversation with Ms. Chorlton, and that he gave no legal advice whatever to her. On the contrary, the two were merely planning a common legal strategy against a third party in the litigation below.”
Establishes that counsel was not representing the opposing party's affiliate and did not provide legal advice to her, defeating the first basis for disqualification.
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Join FLexlaw to unlock all legal intelligenceDan Koppen, counsel for Laura McCarthy, Inc., had a conversation with Virginia W. Chorlton, a realtor affiliated with the opposing party Merrill Lynch…
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PER CURIAM.
This is a petition for a writ of certiorari filed by Laura McCarthy, Inc. which seeks review of a trial court order disqualifying its counsel, Dan Koppen, from representing it in pending litigation below. We grant the subject petition and quash the order under review based on the following briefly stated legal analysis.
First, the legal basis for disqualifying Mr. Koppen from representing the petitioner herein, as asserted in the motion to disqualify filed by the respondent Merrill Lynch Realty/Cousins, Inc., is that (1) Mr. Koppen represented and gave legal advice to one Virginia W. Chorlton, a realtor affiliated with the respondent, in a conversation with her related to the subject matter of the litigation below, and (2) Mr. Koppen is an essential witness for the respondent in the case in that counsel participated in the above-stated conversation with Ms. Chorl-ton, a conversation which respondent asserts disproves the petitioner’s interference with contract claim filed below.
Second, our review of the record, however, reveals that Mr. Koppen was, in fact, representing the petitioner, not Ms. Chorl-ton, when he had his above-stated conversation with Ms. Chorlton, and that he gave no legal advice whatever to her. On the contrary, the two were merely planning a common legal strategy against a third party in the litigation below.
Third, our review of the record further reveals that Mr. Koppen is not an essential witness to the above-stated conversation because the respondent may establish the details of same by calling Ms. Chorlton as a witness. Moreover, the petitioner has conceded during oral argument in this cause that the respondent may also call Mr. Koppen as a witness at trial, even if Mr. Koppen is allowed to represent the petitioner below. Plainly, no prejudice to the respondent could be shown under these circumstances as, presumably, the respondent would not call Mr. Koppen unless he is a favorable witness and corroborates Ms. Chorlton’s testimony as to the above-stated conversation.
Finally, it follows that the two legal grounds relied on for entering the order under review have no merit, and that the trial court departed from essential requirements of law in entering such an order. See Ray v. Stuckey, 491 So. 2d 1211 (Fla. 1st DCA 1986); Perez v. State, 474 So. 2d 398, 400 (Fla. 3d DCA 1985), rev. denied, 484 So. 2d 10 (Fla.1986); Cazares v. Church of Scientology of Calif., Inc., 429 So. 2d 348, 351 (Fla. 5th DCA 1983), rev. denied, 438 So. 2d 831 (Fla.1983).
The petition for a writ of certiorari is granted, the order under review is quashed, and the cause is remanded for further proceedings.
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In re Est. OF Frank A. Gory, Sr., 570 So. 2d 1381 (Fla. 4th DCA 1990)…. 2d 505 (Fla. 4th DCA 1986), and certiorari will lie to quash an order which improperly disqualifies counsel. Ocean Club Condo Ass’n v. Estate of Daly, 504 So. 2d 1377 (Fla. 4th DCA 1987); Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So. 2d 23 (Fla. 3d DCA 1987); Beth S. v. Grant Associates, Inc., 426 So. 2d 1008 (Fla. 3d DCA 1983). The rationale for review- by certiorari in such eases is that a litigant improperly deprived of the lawyer of his choice is irreparably harmed. It is true tha…
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Allstate Ins. Co. v. English, 588 So. 2d 294 (Fla. 2d DCA 1991)…ispensable witness in this proceeding, that is, there are other witnesses available to testify to the same information. Arcara v. Philip M. Warren, P.A., 574 So. 2d 325 (Fla. 4th DCA 1991); Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So. 2d 23 (Fla. 3d DCA 1987); Ray, 491 So. 2d at 1214. In this regard we observe that our sister courts have stated: [T]he rule requiring a lawyer to withdraw when he expects to be a witness in a case “was not designed to permit a lawyer to call opposing cou…
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Steinberg v. Winn-Dixie Stores, Inc., 121 So. 3d 622 (Fla. 4th DCA 2013)…itness when there are other witnesses available to testify to the same information. [*625] Allstate Ins. Co. v. English, 588 So. 2d 294, 295 (Fla. 2d DCA 1991) (citations omitted); see also Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So. 2d 23, 23-24 (Fla. 3d DCA 1987). Respondents G & I and Equity One argue that the trial court properly entered the disqualification order because they intend to call Steinberg’s attorney as a critical witness in their own behalf to establish that their co…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cazares v. The Church OF Scientology OF Cal., Inc., 429 So. 2d 348 (Fla. 5th DCA 1983)
- J.R. RAY, Jr. v. Talmadge & Reva Stuckey & Ortega Executive Ctr., Ltd., 491 So. 2d 1211 (Fla. 1st DCA 1986)
- Perez v. State, 474 So. 2d 398 (Fla. 3d DCA 1985)