How-To: Write a Motion to Disqualify an Attorney

1. existence of an attorney-client relationship
2. matters are substantially similar

"We next address the issue of the appropriate standard to apply to determine whether the Schlesinger firm should be disqualified. In conflict-of-interest cases such as this arising under the former Code of Professional Responsibility, one seeking to disqualify opposing counsel was required to show that (1) an attorney-client relationship existed, thereby giving rise to an irrefutable presumption that confidences were disclosed during the relationship, and (2) the matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client."

"We are of the opinion that a lawyer represents conflicting interests, within the meaning of the Canon, when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose."

"a serious question of conflict of interest arose that should have been resolved by the prompt withdrawal by the respondent from the representation of the trustees and by advising the trustees to secure other attorneys to represent them."

"an attorney may not represent conflicting interests in the same general transaction, no matter how well-meaning his motive or however slight such adverse interest may be. The rule in this respect is rigid, because it is designed not only to prevent the dishonest practitioner from fraudulent conduct but also to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interest which he should alone represent."

• Rule 4-1.6(a) RRTFB
• Rule 4-1.7 RRTFB
• Rule 4-1.9 RRTFB
• Rule 4-2.2 RRTFB

"In Florida, there are four separate expressions concerning the disqualification of trial judges, which are set forth in: (1) The Code of Judicial Conduct Canon 3-C; (2) section 38.10, Florida Statutes (1981); (3) Florida Rule of Criminal Procedure 3.230, which was adopted verbatim by this Court from a former statute, section 911.01, Florida Statutes (1967); and (4) Florida Rule of Civil Procedure 1.432."

1. Canon 3-C, Florida Code of Judicial Conduct;
2. §38.10 FS;
3. Rule 3.230 Fla. R. Crim. P.; and
4. Rule 1.432 Fla. R. Civ. P..

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• see Allied Signal Recovery v Allied Signal, 934 So.2d 675 (Fla. 2d DCA 2006)
• see Fleitman v McPherson, 691 So. 2d 37 (Fla. 1st DCA 1997)
• see Hubbard v Hubbard, 233 So.2d 150 (Fla. 4th DCA 1970)
• see Scott v State, 717 So. 2d 908 (Fla. 1998)

• see Coral Reef of Key Biscayne Developers, Inc. v Lloyd's Underwriters at London, 911 So.2d 155 (Fla. 3d DCA 2005)
• see Kusch v Ballard, 645 So. 2d 1035 (Fla. 4th DCA 1994)

"The standard of review for orders entered on motions to disqualify counsel is that of an abuse of discretion."

• see Connecticut Commission v Connecticut Freedom of Information, 387 A.2d 533 (Conn. 1978)
• see EPA v Pollution Control Bd., 372 NE 2d
• see Feeney v Commonwealth, 366 NE 2d 1262 (Mass. 1977)
• see Sec'y of Admin. & Fin. v . Att'y Gen., 326 NE 2d 334 (Mass. 1975)
• see State of Mississippi v Mississippi Service Commission, 418 So.2d 779 (Miss. 1982)

• see Russakoff v Dept of Insur., 724 So. 2d 582 (Fla. 1st DCA 1998)
• see Simon DeBartolo Grp., Inc. v. Bratley, 741 So. 2d 1254

• see Scott v Higginbotham, 834 So.2d 221 (Fla. 2nd DCA)
• see Solomon v Dickison, 916 So.2d 943 (Fla. 1st DCA 2005)

• see Allstate Ins. Co. v. Bowne, 817 So.2d 994, 998 (Fla. 4th DCA 2002)
• see Estright v Bay POint, 921 So. 2d 810 (Fla. 1st DCA 2006)

"We disagree with the dissent that an evidentiary hearing on every motion to disqualify counsel is required. The prior decisions of this court do not so hold. In School Board of Broward County v. Polera Building Corp., 722 So.2d 971 (Fla. 4th DCA 1999), we did not hold that an evidentiary hearing is required in every case. As Judge Gross made clear in his opinion for the court:"

"The affidavits filed in this case conflict as to whether Weinstein learned of confidential matters during his tenure at Becker Poliakoff. The affidavits present very different versions of the nature and scope of Weinstein's work on school board cases at Becker, Poliakoff. The general contractor cites to cases in which the disqualification issue was decided without an evidentiary hearing; however, where material facts are in dispute, an evidentiary hearing is required." [e.s.] "

"722 So.2d at 974; see also Plaza Resorts Inc. v. Janus American Group Inc., 811 So.2d 850 (Fla. 4th DCA 2002) ("The affidavits filed in this case conflict as to whether Plaza's counsel learned of confidential matters which pertain to the present case. Where material facts are in dispute concerning a motion for disqualification, an evidentiary hearing is required." [e.s.]). Because there is no conflict in this case as to the pertinent facts, we do not understand what an evidentiary hearing would accomplish, except to cause the parties unnecessary expense."

• see Lansing v Lansing, 784 So.2d 1254 (Fla. 5th DCA 2001)
• see Metcalf v Metcalf, 785 So. 2d 747 (Fla. 5th DCA 2001)
• see Pantori v Stephenson, 384 So. 2d 1357 (Fla. 5th DCA 1980)

• see Herschowsky v Guardianship of Herschowsky, 890 So.2d 1246 (Fla. 4th DCA 2005)
• see Lewis v Nical of Palm Beach, Inc. 959 So. 2d 745 (Fla. 4th DCA 2007)

• see Allstate Ins co v Bowne, 817 So. 2d 994 (Fla. 4th DCA 2002)
• see Freeman v Chicago Musical, 689 F. 2d 715 (7th Cir. 1982)
• see Minakan v Husted, 27 So. 3d 695 (Fla. 4th DCA 2010)

• see Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046 (Fla. 5th DCA 2004)
• see Continental Casualty Co., v Przewoznik, 55 So. 3d 690 (Fla. 3d DCA 2011)
• see In re yarn Processing Patent Validity, 530 F.2d 83 (5th Cir. 1876)
• see Lee v Florida Department of Insurance, 586 SO.2d 1185 (Fla. 1st DCA 1991)
• see THI Holdings, LLC v Shattuck, 93 So. 3d 419 (Fla. 2d DCA 2012)

• see Abamar Housing v Lisa Duly, 724 So. 2d 572 (Fla. 3d DCA 1998)
• see Armor Screen Corp. v. Storm Catcher, Inc., 709 F. Supp. 2d (SD Fla. 2010)
• see Matluck v Matluck, 825 So.2d 1071 (Fla. 4th DCA 2002)
• see Morse v Clark, 890 So. 2d 496 (Fla. 4th DCA 2004)
• see Trautman v General Motors, 426 So.2d 1183 (Fla. 5th DCA 1983)