GEORGE H. KHOURY, LAWRENCE KHOURY, GEORGETTE KING, AND ELEANOR SEDAR, APPELLANTS,
v.
ESTATE OF ROSE K. KASHEY, APPELLEE
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In a will contest, the trial court granted an involuntary dismissal when the will contestants presented no evidence of undue influence or lack of testamentary capacity, and then awarded costs and attorney's fees to the prevailing estate under Florida Statute 57.105. The appellate court affirmed, and used the occasion to address the fundamental conflict of interest that arises when an attorney represents a client in a 57.105 proceeding where the attorney may be partially relieved of fee liability.
The trial court properly denied the motion to set aside. An attorney's failure to advise clients of a conflict of interest is not a 'mistake' under Rule 1.540, and disputes between clients and their attorney are not properly litigated in probate court. Attorneys facing 57.105 proceedings must comply with Florida Bar Rule 4-1.7(b) by appraising clients of the conflict and obtaining informed consent to continued representation, documented in writing.
[1] A trial court properly denies a motion to set aside a judgment taxing costs and attorney's fees when the grounds for the motion do not fall within the scope of relief pro…
[2] An attorney's failure to advise clients of a conflict of interest does not constitute a "mistake" contemplated by Florida Rule of Civil Procedure 1.540.
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“The interests of the losing party and his attorney necessarily diverge in a section 57.105 proceeding. This is so because, having made a proper showing of good faith, the losing party's attorney is relieved of personal responsibility for an 'equal share' of the prevailing party's attorney's fee.”
Establishes the fundamental conflict of interest created by section 57.105
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Join FLexlaw to unlock all legal intelligenceRose Kashey's will was probated. George Khoury, Lawrence Khoury, Georgette King, and Eleanor Sedar petitioned to revoke the probate, alleging undue in…
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JORGENSON, Judge.
Upon a finding that the will contestants who petitioned to revoke the probate of Rose Kashey’s will had utterly no evidence to support their allegations of undue influence or lack of testamentary capacity, the trial court granted an involuntary dismissal. The trial court thereafter entered an order on final judgment granting the personal representative’s petition to tax costs and attorney’s fees pursuant to section 57.105, Florida Statutes (1985).1 The contestants’ motion to set aside the final judgment taxing costs and attorney’s fees sought relief under Florida Rule of Civil Procedure 1.540. The trial court properly denied the motion. The failure of an attorney to advise his clients of a conflict of interest is not the sort of “mistake” con templated by the rule, nor is the dispute between these clients and their attorney a subject to be litigated in the probate division of the circuit court. See Herrick v. Southeast Bank, N.A., 512 So. 2d 1029, 1030 n. 3 (Fla. 3d DCA 1987). We therefore affirm the order under review and write further only to draw the attention of the bar to a fundamental conflict of interest inherent in the terms of section 57.105. The statute provides as follows:
Attorney’s fee. — The court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party; provided, however, that the losing party’s attorney is not personally responsible if he has acted in good faith, based on the representations of his client.
The interests of the losing party and his attorney necessarily diverge in a section 57.105 proceeding. This is so because, having made a proper showing of good faith, the losing party’s attorney is relieved of personal responsibility for an “equal share” of the prevailing party’s attorney’s fee.
In order to resolve the conflict in a way that will permit further representation, the losing party’s attorney must give strict attention to Florida Bar Rule of Professional Conduct 4-1.7(b). The rule provides as follows:
A lawyer shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and (2) The client consents after consultation.
As the supreme court noted in The Florida Bar v. Ward, 472 So. 2d 1159, 1162 (Fla. 1985), attorney and client are not infrequently “sued on matters growing out of the representation and, despite the fundamental conflict of interest inherent in such a case, the client insists that the attorney continue in representation as long as possible.” The attorney in such circumstances must consider whether the conflict “will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.” Rules of Professional Conduct Rule 4-1.7 comment.
It is therefore incumbent upon the attorney facing a 57.105 proceeding to apprise the client of the conflict and consequences of continued representation once the attorney has formed a reasonable belief that such representation will not be adversely affected. The attorney should document not only the disclosure, but also the client’s endorsement of the disclosure and the continuing representation. Ward, 472 So. 2d at 1162.
The order under review is affirmed.
. Florida courts have previously applied section 57.105 to probate proceedings. See Bashure v. Estate of Paulk, 498 So. 2d 525 (Fla. 1st DCA 1986); Anderson v. Anderson, 468 So. 2d 528 (Fla. 3d DCA), rev. denied, 476 So. 2d 672 (Fla. 1985); Goldwom v. Estate of Day, 452 So. 2d 659 (Fla. 3d DCA 1984); Ferguson v. Estate of Ferguson, 410 So. 2d 617 (Fla. 4th DCA 1982); Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA), rev. denied, 392 So. 2d 1373 (Fla.1980).
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Mullins v. Kennelly, 847 So. 2d 1151 (Fla. 5th DCA 2003)…ed a reasonable belief that such representation will not be adversely affected. The attorney should document not only the disclosure, but also the client’s endorsement of the disclosure and the continuing representation.” Khoury v. Estate of Kashey, 533 So. 2d 908, 909 (Fla. 3d DCA 1988); see The Florida Bar v. Ward, 472 So. 2d 1159, 1162 (Fla.1985). In such circumstances, the attorney must consider whether the conflict “will materially interfere with the lawyer’s independent professional judgment in consider…
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Broad AND Cassel v. Newport Motel, Inc., 636 So. 2d 590 (Fla. 3d DCA 1994)…with the plaintiff, given the defendants’ demand that plaintiffs counsel should pay for one half of the attorney’s fee, in which event plaintiffs counsel is necessarily bound by our prior pronouncements on this issue. See Khoury v. Estate of Kashey, 533 So. 2d 908 (Fla. 3d DCA 1988). The order under review is reversed, and the cause is remanded to the trial court with directions (1) to decide whether the plaintiff failed to raise a justiciable issue of law or fact in the subject legal malpractice action, an…
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Miri Mayost Visoly and Aviad Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482 (Fla. 3d DCA 2000)…ment of fees unless the losing party’s. counsel has acted in good faith, based upon the factual representations of his or her client.12 See Morrone v. State Farm Fire and Cas. Ins. Co., 664 So. 2d 972 (Fla. 4th DCA 1995); Khoury v. Estate of Kashey, 533 So. 2d 908 (Fla. 3rd DCA 1988). Here, the trial court found the Vi-solys used Westburry as a shell to delay foreclosure of the mortgage through asserting positions which were “plainly sham and frivolous” on the facts and law. This finding is supported by the…
Authorities Cited
- Carola D. Allen v. Est. of Ellen C. Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980)
- Herrick v. Se. Bank, N.A., 512 So. 2d 1029 (Fla. 3d DCA 1987)
- Jones v. State, 468 So. 2d 528 (Fla. 1st DCA 1985)
- Anderson v. Anderson, 468 So. 2d 528 (Fla. 3d DCA 1985)
- THE Florida BAR v. Ward, 472 So. 2d 1159 (Fla. 1985)
- W.B.M. v. State, 452 So. 2d 659 (Fla. 3d DCA 1984)
- Ferguson v. Est. OF Courtland D. Ferguson, 410 So. 2d 617 (Fla. 4th DCA 1982)
- Shaffey Bashure v. Est. OF Emily B. Paulk, 498 So. 2d 525 (Fla. 1st DCA 1986)