MICHELLE HIATT, PETITIONER,
v.
THE ESTATE OF JOHN HIATT, RESPONDENT
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.
Michelle Hiatt sought a writ of certiorari to challenge the trial court's order disqualifying her attorney, Chris Keith, in a probate dispute over an antenuptial agreement. The Fourth District Court of Appeal held that the trial court abused its discretion by disqualifying counsel without requiring the moving party to present evidence demonstrating that the attorney would be a necessary witness.
The court held that disqualification of counsel against the wishes of counsel and client must be resorted to sparingly and only when the moving party bears the burden of presenting evidence that the attorney is likely to be a necessary witness. The trial court abused its discretion by granting the disqualification motion without any evidence being presented.
[1] Disqualification of counsel should be resorted to sparingly and only when necessary.
[2] The moving party bears the burden of demonstrating the necessity of an attorney's testimony for disqualification.
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“Generally, disqualification of counsel, contrary to the wishes of counsel and the client, should be resorted to sparingly.”
Establishes the fundamental principle that attorney disqualification is a drastic remedy requiring a high showing of necessity
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMichelle Hiatt retained attorney Chris Keith to represent her in a probate action challenging an antenuptial agreement with her husband's estate. The …
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 Advocate-Witness Rule cases and more on FLexlaw
PER CURIAM.
We grant Michelle Hiatt’s petition for writ of certiorari and quash the order disqualifying her counsel in this litigation with the personal representative of her husband’s estate.
Attorney Chris Keith (“Keith”), represents Ms. Hiatt in this probate action where the validity of the parties’ antenup-tial agreement is at issue. In a motion to discharge Keith, the personal representative alleged that Keith will be called as a witness because he offered Ms. Hiatt advice on the antenuptial agreement prior to its execution. A hearing was held on the motion, during which no evidence was pre sented and Keith denied being a material witness. Based solely on the personal representative’s motion, which contained no affidavits, and arguments at the hearing, the trial court granted the motion to discharge and disqualified Keith as trial counsel. However, the court allowed him to remain counsel for pre-trial proceedings.
We note that both parties have submitted the transcript of Keith’s deposition to this court and their arguments thereon. Significantly, however, this deposition was not before the trial court, as evidenced by its order stating, “[t]he Court heard argument of counsel, but received no testimony, deposition or documentary evidence at the hearing.”
Generally, disqualification of counsel, contrary to the wishes of counsel and the client, should be resorted to sparingly. See Arcara v. Philip M. Warren, P.A, 574 So. 2d 325, 326 (Fla. 4th DCA 1991). The moving party bears the burden of demonstrating the necessity of the attorney’s testimony and thus his disqualification. See Swensen’s Ice Cream Co. v. Voto, Inc., 652 So. 2d 961, 962 (Fla. 4th DCA 1995); accord Ray v. Stuckey, 491 So. 2d 1211, 1214 (Fla. 1st DCA 1986).
Under the circumstances here, where no evidence was proffered or offered below, the personal representative has failed to carry her burden. Nothing in the record demonstrated that Keith “is likely to be a necessary witness on behalf of his ... client on a contested matter.” Allstate Ins. Co. v. English, 588 So. 2d 294, 295 (Fla. 2d DCA 1991). Absent the personal representative’s showing that Keith will be a necessary witness or that his testimony would be adverse to Ms. Hiatt’s position, see id., the court departed from the essential requirements of the law in granting the motion to discharge counsel. See In re Estate of Gory, 570 So. 2d 1381, 1383 (Fla. 4th DCA 1990); Stuckey, 491 So. 2d at 1214.
We grant the petition, quash the order, and remand for an evidentiary hearing on the motion.
POLEN, C.J., WARNER and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Quality AIR Conditioning Co., Inc. v. Vrastil, 895 So. 2d 1236 (Fla. 4th DCA 2005)…tion of an opponent’s chosen counsel, based on the need for that attorney’s testimony at trial, “[t]he moving party bears the burden of demonstrating the necessity of the attorney’s testimony and thus his disqualification.” Hiatt v. Estate of Hiatt, 837 So. 2d 1132, 1133 (Fla. 4th DCA 2003). In Hiatt, the lower court disqualified an attorney in a probate action when the personal representative alleged the attorney would be “called as a witness because he offered Ms. Hiatt advice on the antenuptial agreement pr…
-
Brooks v. Foster, 889 So. 2d 902 (Fla. 4th DCA 2004)…Estate of Gory, 570 So. 2d 1381, 1382 (Fla. 4th DCA 1990). A party seeking to disqualify chosen counsel bears the burden to demonstrate that the attorney’s testimony is necessary and therefore requires disqualification. See Hiatt v. Estate of Hiatt, 837 So. 2d 1132, 1133 (Fla. 4th DCA 2003). Disqualifying a party’s chosen counsel is an extraordinary remedy to be employed cautiously. Singer Island Ltd., Inc. v. Budget Constr. Co., 714 So. 2d 651, 652 (Fla. 4th DCA 1998); Swensen’s Ice Cream Co. v. Voto, Inc., 6…
-
Everret Green v. Green (Fla. 3d DCA 2024)
Authorities Cited
- Bonfiglio v. Hampton, 574 So. 2d 325 (Fla. 4th DCA 1991)
- In re Est. OF Frank A. Gory, Sr., 570 So. 2d 1381 (Fla. 4th DCA 1990)
- J.R. RAY, Jr. v. Talmadge & Reva Stuckey & Ortega Executive Ctr., Ltd., 491 So. 2d 1211 (Fla. 1st DCA 1986)
- Swensen's ICE Cream Co. v. Voto, Inc., 652 So. 2d 961 (Fla. 4th DCA 1995)
- Allstate Ins. Co. v. English, 588 So. 2d 294 (Fla. 2d DCA 1991)