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Rosenthal Law Group Prevails in Appeal of an Order Disqualifying Counsel in a Probate Dispute

Rosenthal Law Group is pleased to announce that it has prevailed in an appeal before the Florida Third District Court of Appeal in an appeal of a non-final order granting its client’s motion to disqualify an attorney from representing his opponent in a will dispute pending in the Circuit Court for the 11th Judicial Circuit in and for Miami-Dade County, Florida.

The case involved a dispute between brothers over the validity of a will made by their deceased father. The client’s brother retained attorney Gustavo Gutierrez to represent him against the client.

The client argued to the trial court that Gutierrez had been counsel for the client in several business and personal transactions and thus had a conflict of interest by representing the Appellant in this estate dispute. Rolando Jr. invoked Rule 4-1.7 (Conflict of Interest, Current Clients), Rule 4-1.9 (Conflict of Interest, Former Client), Rule 4-1.10 (Imputation of Conflicts of Interest; General Rule), and Rule 4-1.13 (Organization as Client), of the Rules Regulating the Florida Bar.

Following a hearing on the client’s motion to disqualify, the trial court determined that Gutierrez would be a fact witness and had a conflict in interest and entered an Order disqualifying Gutierrez.

The Appellate court, in Cordero v Cordero, 3D23-0503, affirmed the trial court’s order of disqualification and held:

This case also involves application of Rule Regulating the Florida Bar 4-1.9, which prohibits an attorney from representing a new client against a former client if that attorney will (a) represent another person in the same of a substantially related matter in which tat person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent (which the [client] did not give); (b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or (c) reveal information relating to the representation except as these rules would permit with respect to the client.

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In this case, there is no dispute that Gutierrez had an attorney-client relationship with [client] and the Decedent for several years, representing both since 2012 in a variety of personal and business matters. Gutierrez prepared the Decedent’s 2012 Will and certain trust documents that involved both of his sons; he can testify to the Decedent’s conversations and intent regarding his estate planning over these years, and he mediated the business disputes between the parties involving the Decedent’s corporation, Nema. All of these issues were raised in the underlying pleadings and appear to be relevant to the current will dispute litigation.

Applying Rule 4–1.9(a) to the circumstances present in this case, it is undisputed that Gutierrez represented [client] in the same or a substantially related matter in which [Client]’s interests are materially adverse to the interests of the Appellant. Further, under subsection (b) of the rule, through Gutierrez, the Appellant would be able to use information relating to [client]’s and the Decedent’s representation to [Client]’s disadvantage. We note that the trial court specifically observed that any hardship to the Appellant was outweighed by the prejudice to [client] if Gutierrez were permitted to continue representing the Appellant, and further, that the Appellant had other counsel to represent him. Accordingly, we affirm.

This case carefully and thoroughly clarifies for parties and counsel the parameters by which they can represent parties in litigation when conflicts exist.

This appeal was handled by Alex Rosenthal and Amanda Jones.

Rosenthal Law Group handles all types of commercial litigation and appeals and is available to discuss your matter with you. Please contact us at (954) 384-9200.