LEN K. FURMAN, Petitioner,
JAN CARY FURMAN, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
for Writ of Certiorari to the Circuit Court for Sarasota
County; Donna Padar Berlin, Judge.
W. Lord, Sarasota, for Petitioner.
L. Wallach of Jordan L. Wallach, P.A., Sarasota, for
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
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.
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
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.
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.
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 ...