811 So. 2d 850 | Fla. Dist. Ct. App. | 2002
Concurrence Opinion
concurring specially.
I concur in quashing the order disqualifying plaintiffs law firm, but I would not require any evidentiary hearing. School Board of Broward County v. Polera Building Corp., 722 So.2d 971 (Fla. 4th DCA 1999), does not make an evidentiary hearing necessary in every case seeking disqualification of a party’s lawyer. It holds that an evidentiary hearing must be held only when the affidavits for and against disqualification are in conflict as to an essential issue raised in a legally sufficient motion.
Here there is no conflict because the grounds for the motion are plainly inadequate. The mere fact that an attorney may have participated in discovery requests in an earlier case does not create a prima facie basis for the disqualification of the attorney. The disqualification of a party’s lawyer is an unusually drastic measure, see General Accident Ins. Co. v. Borg-Warner Accept. Corp., 483 So.2d 505 (Fla. 4th DCA 1986) (disqualification of party’s chosen counsel is extraordinary remedy and should be resorted to sparingly), requiring the greatest judicial circumspection in granting such extraordinary relief. Unless a motion for disqualification raises a clear and unmistakable basis for it, I would not require an evidentiary hearing. Such hearings themselves invade the
Lead Opinion
Plaza Resorts, Inc., the petitioner and plaintiff in the action below, seeks certiora-ri review of an order granting Janus Hotels & Resorts, Inc.’s motion to disqualify Plaza’s law firm. This court has jurisdiction. See Springtree Country Club Plaza, Ltd. v. Blaut, 642 So.2d 27, 28 (Fla. 4th DCA 1994); Fla.R.App.P. 9.030(b)(2).
Janus moved to disqualify Plaza’s law firm and filed an affidavit by Janus’ president. In its motion, Janus contended that Plaza’s law firm had formerly represented Janus on a matter in “which discovery requests sought information related to the subject matter of the case at bar.”
Plaza opposed Janus’ motion with an affidavit from one of the lawyers at its law firm, in which he alleged that the only matters in which it had represented Janus were substantially unrelated and no client confidences were shared between Janus and the law firm. The trial court granted the motion to disqualify based on the affidavits alone, without taking any further evidence.
Disqualification cases require the trial court to make a factual determination. Koulisis v. Rivers, 730 So.2d 289, 292 (Fla. 4th DCA 1999); Sch. Bd. of Broward County v. Polera Bldg. Corp., 722 So.2d 971, 973 (Fla. 4th DCA 1999).
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. Polera, 722 So.2d at 974.
As in Polera, the trial court departed from the essential requirements of law by granting Janus’ motion for disqualification solely on the basis of affidavits submitted by the parties. The petition for writ of certiorari is granted, and the order granting the motion for disqualification is quashed. We remand the case for an evi-dentiary hearing on the issues set forth in Professional Rule of Conduct 4-1.7. The trial court shall reconsider its ruling on the discovery issue in light of the requirement that an evidentiary hearing must be held. See Pascucci v. Pascucci, 679 So.2d 1311 (Fla. 4th DCA 1996).
