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Furman v. Furman

Florida Court of Appeals, Second District

January 5, 2018

LEN K. FURMAN, Petitioner,
v.
JAN CARY FURMAN, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Petition for Writ of Certiorari to the Circuit Court for Sarasota County; Donna Padar Berlin, Judge.

          Mark W. Lord, Sarasota, for Petitioner.

          Jordan L. Wallach of Jordan L. Wallach, P.A., Sarasota, for Respondent.

          BLACK, JUDGE

         Len Furman, the Husband, seeks certiorari review of the circuit court's order disqualifying his attorney from representing him in pending dissolution proceedings based on the attorney's involvement in drafting the prenuptial agreement at issue below. We grant the petition for writ of certiorari and quash the order disqualifying the Husband's attorney.

         The initial motion to disqualify was filed by Jan Furman, the Wife, on February 5, 2010. The motion alleged that the Husband's attorney was involved in drafting the prenuptial agreement and would be a "material witness" in the case, but the motion did not otherwise allege a basis for the disqualification. The Wife's counsel subsequently withdrew from the case on September 1, 2010, without scheduling the motion to disqualify for a hearing. Almost five years later, the Wife's former counsel filed a notice of appearance, and on December 29, 2016, almost seven years after the initial motion was filed, the Wife filed a "renewed motion to disqualify." The 2016 motion alleged not only that the Husband's attorney prepared the agreement and would be a "material witness, " it also alleged that the Husband's attorney "has a personal interest in ensuring that the prenuptial agreement" is upheld and enforced; that the attorney's "independent, professional judgment will suffer material interference by his own personal interest in ensuring the prenuptial agreement is upheld"; that the attorney's "testimony may violate his own duty to the Husband to provide the Husband with diligent and competent representation"; and that the attorney's representation of the Husband violates rules 4-1.7 and 4-3.7 of the Florida Rules of Professional Conduct. Following a hearing, the circuit court granted the renewed motion to disqualify. The order contains no findings and directs that the Husband shall obtain alternate counsel with no conditions, limitations, or qualifications.

         "Disqualification of counsel is 'an extraordinary remedy that should be used most sparingly.' " Bon Secours-Maria Manor Nursing Care Ctr., Inc. v. Seaman, 959 So.2d 774, 775 (Fla. 2d DCA 2007) (quoting Akrey v. Kindred Nursing Ctrs. E., L.L.C., 837 So.2d 1142, 1144 (Fla. 2d DCA 2003)). As such, "review of an order of disqualification by certiorari is appropriate, and a reviewing court may grant the writ where the petitioner can demonstrate that the order disqualifying counsel departed from the essential requirements of law." Id. (citing Akrey, 837 So.2d at 1144); accord Lieberman v. Lieberman, 160 So.3d 73, 74 (Fla. 4th DCA 2014). "[B]ecause 'an order disqualifying counsel denies the right to choose one's counsel and works a material injury that cannot be remedied on appeal, ' " the jurisdictional requirements for certiorari review are met. Alto Constr. Co. v. Flagler Constr. Equip., LLC, 22 So.3d 726, 727 (Fla. 2d DCA 2009) (quoting AlliedSignal Recovery Tr. v. AlliedSignal, Inc., 934 So.2d 675, 677 (Fla. 2d DCA 2006)). We must therefore determine whether the circuit court departed from the essential requirements of law.

         The Husband argues that by requiring "full disqualification" of his attorney and by ruling on the motion "without an evidentiary basis to do so, " the circuit court departed from the essential requirements of law. Because the Husband's argument focuses on the latter, we begin with the argument that the court granted the unsworn motion without holding an evidentiary hearing or otherwise having an evidentiary basis to grant the motion.

         "[T]he Florida Rules of Professional Conduct provide the standard for determining whether counsel should be disqualified in a given case." Young v. Achenbauch, 136 So.3d 575, 580 (Fla. 2014) (citing State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 633 (Fla. 1991)). Here, the Wife has identified rules 4-1.7 and 4-3.7 as the applicable rules of professional conduct.

         Rule 4-1.7 is the conflict of interest rule. It appears that the Wife contends that the Husband's attorney would be in violation of rule 4-1.7(a)(2) if he continues to represent the Husband: "[A] lawyer must not represent a client if . . . there is a substantial risk that the representation of 1 or more clients will be materially limited by . . . a personal interest of the lawyer." Rule 4-1.7 also states, however, that

[n]otwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to ...

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