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Goff v. Goff

Florida Court of Appeals, Second District

June 26, 2019



          Petition for Writ of Certiorari to the Circuit Court for Collier County; Christine Greider, Judge.

          Raymond L. Bass, Jr. of Bass Law Office, Naples, for Petitioner.

          Peter S. Adrien of Law Offices of Adrien & Richards, Hollywood, for Respondent.

          ATKINSON, JUDGE.

         Nathan Goff, the former husband, petitions for a writ of certiorari seeking review of the trial court's order disqualifying his attorney, Raymond Bass, from representing him in a postdissolution proceeding involving his former wife, Heather Goff. Because the trial court's order departed from the essential requirements of the law, we grant the petition and quash the order.

         The parties were married on May 9, 1999. The former wife filed a petition for dissolution of marriage on February 29, 2016. After a final judgment of dissolution of marriage was entered on July 7, 2017, the former wife filed three postjudgment motions: a Motion to Enforce Final Judgment, a Motion for Assets Awarded, and a Motion for Respondent to Remove Assets. Mr. Bass filed a notice of appearance on behalf of the former husband.

         Mr. Bass has known the former husband since he was born and met the former wife while she was dating the former husband. Throughout the years, Mr. Bass has given the parties legal advice regarding various issues. Mr. Bass represented the former husband in a personal injury case that lasted several years. He also represented the former wife in a family-related dispute regarding a debt owed to her by her sister and brother-in-law.

         The former wife filed a motion to disqualify Mr. Bass as the former husband's attorney. Her motion was based on rule 4-1.9, Rules Regulating the Florida Bar, which governs conflicts of interests with former clients. In her motion, the former wife alleged that Mr. Bass has confidential information about the parties' finances. The motion also made reference to Mr. Bass being listed as a trial witness for the former husband in the pretrial catalog of the dissolution proceeding.

         Mr. Bass responded to the former wife's allegations in an affidavit, alleging that he consulted with the former wife on one occasion on a legal matter that had nothing to do with the dissolution proceeding. Mr. Bass also alleged that he has not obtained any confidential information about any matter involving their marriage. He explained that he was listed as a witness in the dissolution proceeding "for the purpose of establishing the circumstances of how the former husband obtained his home from his father and his sister following the death of his grandfather." He was neither served with a subpoena nor called to testify at trial.

         The trial court conducted a hearing on the former wife's motion. On cross-examination, the former wife admitted that she had made a complete disclosure of her personal finances during the dissolution proceeding. The trial court subsequently entered an order disqualifying Mr. Bass as counsel for the former husband. The trial court relied on Furman v. Furman, 233 So.3d 1280 (Fla. 2d DCA 2018) and cited to rule 4-1.7 but made no mention of rule 4-1.9, upon which the former wife's motion was based.[1]

         "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)). Because an order disqualifying counsel denies a party's right to choose one's counsel, it is a material injury that cannot be remedied on appeal. Id. As such, certiorari is the appropriate vehicle to review an order disqualifying counsel.[2] Alto Constr. Co., Inc. v. Flagler Constr. Equip., LLC, 22 So.3d 726, 727 (Fla. 2d DCA 2009) (citing AlliedSignal Recovery Tr. v. AlliedSignal, Inc., 934 So.2d 675, 677 (Fla. 2d DCA 2006)).

         The standard of review for orders disqualifying counsel is whether the trial court abused its discretion. See Young v. Achenbauch, 136 So.3d 575, 580-81 (Fla. 2014); see also Kaplan v. Divosta Homes, L.P., 20 So.3d 459, 461 (Fla. 2d DCA 2009). "While the trial court's discretion is limited by the applicable legal principles, the appellate court will not substitute its judgment for the trial court's express or implied findings of fact which are supported by competent substantial evidence." Applied Dig. Sols., Inc. v. Vasa, 941 So.2d 404, 408 (Fla. 4th DCA 2006). To be entitled to a writ of certiorari, a petitioner must establish that the trial court departed from the essential requirements of law. Furman, 233 So.3d at 1282.

         "[T]he Florida Rules of Professional Conduct provide the standard for determining whether counsel should be disqualified in a given case." Young, 136 So.3d at 580 (citing State Farm Mut. Auto Ins. Co. v. K.A.W., ...

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