Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When can a lawyer be disqualified from representing a spouse in a Florida divorce case? Disqualification of a lawyer is an extraordinary remedy,. This was an issue in the case Phinney v. Phinney, 3D24-1314 (Fla. 3d DCA January 15, 2025).
In the underlying divorce case, the husband was rendered incapacitated after a fall from a ladder. As a result, his sister, an attorney, was appointed as his guardian. She was given the power to sue and be sued, and defend lawsuits. As the guardian, the sister filed a limited appearance in the divorce case stating her representation was limited to “equitable distribution of marital assets and liabilities, alimony, child support, and discovery issues related to Miami Sites, Inc.” This was later amended to “the limited purposes of discovery and mediation.”
In litigation, the sister filed a motion for summary judgment and attached an affidavit she signed about the husband’s finances. The wife moved to disqualify the sister on the ground that she was now a material witness. This motion was later withdrawn. The husband’s trial counsel withdrew from representing him and new counsel filed a motion for continuance of trial, stating the husband’s sister was unable to serve as counsel at trial because she was a fact witness. The wife also filed a witness list indicating the sister was to be called as a witness. The trial court entered an order disqualifying the sister without limitation. An appeal ensued.
Reviewing under an abuse of discretion standard, the appellate court reversed the trial court’s order. Relying on Florida Rule of Professional Conduct 4-3.7, the court held “It is evident from this text that the Rule only applies where the lawyer intends to act as an advocate at trial. ‘The key words here are ‘at a trial.’ Therefore, it follows that a lawyer may act as an advocate at pre-trial (before the start of the trial) and post-trial (after the judgment is rendered) proceedings.’ Columbo v. Puig, 745 So. 2d 1106, 1107 (Fla. 3d DCA 1999).”
The court concluded “The trial court applied the Rule to all proceedings—without limitation or regard to the phase of the case. This is much too broad. [. . .] We find that the trial court abused its discretion by disqualifying Kara Phinney. Its decision was based on an erroneous view of the law—which is evident on the face of the record.[. . .] While Kara cannot act as an advocate at trial, she can do so in pretrial and posttrial proceedings. This is in accord with the text of Rule 4-3.7.”
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