Opinion
No. 4D04-2872.
December 8, 2004.
Appeal from the Fifteenth Judicial Circuit Court, Palm Beach County, Timothy P. McCarthy, J.
Scott Bruce Chapman, Boca Raton, for petitioner.
Manuel Kushner of Kaye Scholer LLP, West Palm Beach, for respondent William O. Foster.
In this case we address whether the Respondent's allegation that Petitioner's chosen counsel will be a fact witness based on counsel's sworn statement opposing the Respondent's claim of exemption as to certain bank accounts in a garnishment proceeding satisfies the burden Respondent bears to demonstrate that the counsel's testimony is necessary and therefore requires disqualification. We determine that the sworn statement, without more, is insufficient to satisfy the burden and thus, the trial court's decision to disqualify chosen counsel was premature.
Petitioner, Dennis L. Brooks ("Brooks"), obtained a judgment against Respondent, William Owen Foster ("Foster"), in a federal court in California. Thereafter, Brooks, through his Florida counsel, Thomas W. Franchino ("Franchino"), sought to enforce the judgment in Florida. During the enforcement proceedings, Brooks sought to garnish various accounts held by Foster. Foster claimed that certain accounts were exempt from garnishment. Franchino executed and served sworn statements contesting Foster's claims of exemption. Franchino's statements were based on his review of all the documents provided during the litigation. Based on the sworn statements, Foster filed a motion to disqualify Franchino, served Franchino with a notice of taking a deposition, and moved to strike the sworn statements. The trial court disqualified Franchino and denied Foster's motion to strike. Brooks filed the writ of certiorari presently before this Court challenging the trial court's order disqualifying his counsel.
A writ of certiorari is the proper vehicle for challenging an order granting a motion to disqualify chosen counsel. See In re Estate of Gory, 570 So.2d 1381, 1382 (Fla. 4th DCA 1990). A party seeking to disqualify chosen counsel bears the burden to demonstrate that the attorney's testimony is necessary and therefore requires disqualification. See Hiatt v. Estate of Hiatt, 837 So.2d 1132, 1133 (Fla. 4th DCA 2003). Disqualifying a party's chosen counsel is an extraordinary remedy to be employed cautiously. Singer Island Ltd., Inc. v. Budget Constr. Co., 714 So.2d 651, 652 (Fla. 4th DCA 1998); Swensen's Ice Cream Co. v. Voto, Inc., 652 So.2d 961, 961 (Fla. 4th DCA 1995).
While Foster served Franchino with a notice to take his deposition, at the time the trial court made its decision no such deposition had been taken. This Court addressed a similar situation where a party seeking disqualification stated that the counsel would be a material witness and needed to be deposed, but had not deposed counsel at the time the motion was made, thus not presenting a record sufficiently developed to support disqualification. Singer Island Ltd., Inc., 714 So.2d at 652. This Court found that such facts demonstrated "only a possibility that disqualification might be necessary." Id. Similarly, Brooks asserted that Franchino was a fact witness and must be deposed. Brooks's assertion is based on Franchino's sworn statements filed pursuant to section 77.041(3), Florida Statutes (2004), which requires that if a defendant asserts a claim of exemption and a plaintiff does not file a sworn written statement contesting such exemption, the writ of garnishment must be automatically dissolved. The need to depose a party's chosen counsel based on the execution of such statements demonstrates nothing more than the potential that disqualification will be required. The trial court's decision provided Brooks with an extraordinary remedy based on nothing more than a possibility. Accordingly, we hold that at this point in the proceedings, the trial court erred in granting Brooks's motion. Therefore, the petition is granted and the order disqualifying Franchino is quashed.
GUNTHER and HAZOURI, JJ., concur.
FARMER, C.J., concurs specially with opinion.
I join in quashing the order disqualifying counsel — but not because it is pre mature. Actually, on the ground alleged it will never be mature. It is legally insufficient.
The sin of the disqualified lawyer was to file sworn statements — in his capacity as counsel for a judgment creditor armed with a writ of garnishment — that challenged the debtor's claim that garnished funds are exempt from seizure. I don't care how many depositions the debtor might take of the lawyer swearing that he really meant to challenge the exemption, his conduct cannot possibly entitle the debtor to get rid of the creditor's lawyer — and especially not on the grounds that he has become a witness against him.
The role of the garnishor's lawyer challenging a judgment debtor's claim of exemption is the rough equivalent of the State Attorney's Traverse to the defendant's motion to dismiss the charges for legal insufficiency. The State Attorney has not thereby become a substantive witness against the accused, any more than any opposing lawyer becomes a personal adversary by saying "prove it." And that is all this lawyer has done.
Section 77.041(3) says that "if the plaintiff does not file a sworn statement that contests the defendant's claim of exemption" the claim of exemption is automatically deemed valid. There is nothing in the statute suggesting that the challenge must be based on facts as opposed to legal grounds. Thus the challenge is often done by the creditor's lawyer because the creditor himself cannot be expect to have personal cognizance or knowledge of the legal basis for the challenge.
He put the debtor to his proof that his property is exempt from the levying creditor. The sole effect of the lawyer's filing was to require Foster to prove that the $1.3 million funds held in trust legally qualified as wages of a head of a household. Or that they are properly deemed retirement funds. Or that spendthrift clauses prevented garnishment. Or that the funds were entireties property. Or that they were otherwise jointly owned by a person not subject to the underlying judgment. In all, the debtor has the burden to show that under the law and facts he is entitled to the claim of exemption.
The creditor's lawyer is certainly an adversary of the debtor but not disqualifyingly so. If this court persists in implying that possibility by today's holding of prematurity, we may be handing judgment debtors a powerful and unprecedented tool to postpone or even escape a creditor's levy. And for no earthly reason, at that.
I would quash the disqualification outright and tell the judgment debtor that he does not have a veto over the creditor lawyer. As I said in Kusch v. Ballard, 645 So.2d 1035, 1036 (Fla. 4th DCA 1994) (Farmer J., concurring), disqualification "strikes at the heart of one of the most important associational freedoms that a person may have — the right to choose one's own lawyer."