Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

What is the procedure to disqualify an attorney in a Miami family law case? One key component of disqualification is due process - a hearing and and opportunity to present evidence must be given when disputed allegations arise. This was an issue in the case Green v. Green, 3D23-1358 (Fla. 3d DCA June 12, 2024).

Twenty-two months after filing their answer and counter-claim in the case, the defendants filed a motion to disqualify the plaintiff’s attorney. At a hearing on a motion for summary judgment filed by the plaintiff’s attorney, the defendants raised the issue of the attorney’s disqualification even though that motion was not noticed for hearing. The court granted the request for disqualification while deferring ruling on summary judgment. The plaintiff appealed.

The appellate court reversed, holding “A basic tenet of our jurisprudence is the right to due process. Due process requires a notice of hearing and an opportunity to be heard. [internal citations omitted]. Glaringly absent from the proceeding below is any notice to [the attorney], or a reasonable opportunity to be heard, on the question of her disqualification. Unless the facts supporting the motion to disqualify counsel are undisputed, a hearing is required. [internal citations omitted]. It is not sufficient for the movant to simply allege that the facts are undisputed. At the hearing, the movant bears the burden of demonstrating the need to disqualify counsel.”

The court concluded “The pleadings below and the motion to disqualify show that Defendants were aware of the basis upon which they seek to disqualify [the attorney] as of the date when they filed their counterclaim; that is, twenty-two (22) months before they filed the motion to disqualify. A motion to disqualify counsel should be filed with reasonable promptness upon discovery of the basis for such disqualification. Case v. City of Miami, 756 So. 2d 259, 260- 61 (Fla. 3d DCA 2000). Unreasonable delay in filing the motion may constitute waiver. See Zayas-Bazan v. Marcelin, 40 So. 3d 870, 872-73 (Fla. 3d DCA 2010). Under these circumstances, we conclude that the trial court departed from the essential requirements of law in granting the motion to disqualify [the attorney] without notice and an opportunity to be heard.”

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