Summary
holding that defendant's announced intention to call plaintiff's counsel as a witness is not a basis for disqualification
Summary of this case from Steinberg v. Winn-Dixie Stores, Inc.Opinion
No. 93-321.
August 3, 1993.
Appeal from the Circuit Court, Dade County, Robert H. Newman, J.
Warren M. Salomon, Miami, for appellant.
Green, Kahn, Piotrkowski Miller and Robert B. Miller, Miami Beach, for appellees.
Before SCHWARTZ, C.J., and BASKIN and LEVY, JJ.
The personal representative of an estate seeks review of an order disqualifying his counsel, Warren Salomon, from representing the estate in a will contest being maintained by the appellees. We treat the appeal as an application for certiorari, see In re Estate of Gory, 570 So.2d 1381 (Fla. 4th DCA 1990), and cases cited, and quash the order under review.
Salomon acted as the attorney for the decedent in supervising the execution of the will in question. The personal representative has unequivocally stated that he will not call Salomon as his own witness at the trial, see Beavers v. Conner, 258 So.2d 330 (Fla. 3d DCA 1972), and a review of counsel's deposition reveals that any testimony he might give would not be contrary to the interests of his client. See Allstate Ins. Co. v. English, 588 So.2d 294 (Fla. 2d DCA 1991); Ray v. Stuckey, 491 So.2d 1211 (Fla. 1st DCA 1986); Cazares v. Church of Scientology of California, 429 So.2d 348 (Fla. 5th DCA 1983), pet. for review denied, 438 So.2d 831 (Fla. 1983). Thus, he may not be disqualified merely because of the opponents' announced intention to call him as an adverse witness on their behalf. See Arcara v. Philip M. Warren, P.A., 574 So.2d 325, 326 (Fla. 4th DCA 1991) ("[T]he rule requiring a lawyer to withdraw when he expects to be a witness in a case `was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.'") (quoting Cazares, 429 So.2d at 350); Beavers, 258 So.2d at 330 (opposing counsel may not be disqualified by calling him as adverse witness); Hill v. Douglass, 248 So.2d 182 (Fla. 1st DCA 1971) (same), quashed on other grounds, 271 So.2d 1 (Fla. 1972).
It is clear, therefore, that there is no lawful basis to support the order under review. See Laura McCarthy, Inc. v. Merrill-Lynch Realty/Cousins, Inc., 516 So.2d 23 (Fla. 3d DCA 1987); Banco De Comercio, S.A.C.A. v. Sun Banks, Inc., 488 So.2d 870 (Fla. 3d DCA 1986); Perez v. State, 474 So.2d 398 (Fla. 3d DCA 1985), review denied, 484 So.2d 10 (Fla. 1986).
Certiorari granted.