Disqualification is an Extreme Remedy > Ferraro Law Group, PL

Disqualification is an Extreme Remedy

Strawcutter v. Strawcutter, WL 5969638 (Fla. 5th DCA 2012).

Upon receiving the Husband’s Petition for Dissolution of Marriage, the Wife retained the law firm of Kaufman, Englett & Lynd, PLLC to represent her. Coincidentally, the Kaufman law firm was already acquainted with the Husband, an attorney himself, because they were acting as opposing counsel in a case that he was litigating. The issues in this appeal arose from Mr. Strawcutter’s allegation that his wife had improperly accessed  privileged material in his case against the Kaufman law firm and provided it to them behind his back. He further alleged that the Kaufman law firm used that information to sue him personally.

The Husband moved to disqualify the Kaufman law firm because: (a.) they had purportedly received privileged materials in another case; and (b.) their representation of the Wife would enable them to review his financial disclosures, which they would otherwise be unable to obtain in their civil case against him. The Trial Court agreed with the Husband and entered an Order disqualifying the Kaufman firm from representing the Wife. She appealed that order and won a reversal on all grounds.

The Fifth District began its analysis from the premise that disqualification of an attorney is an extraordinary remedy which should be avoided in all but the most extreme cases of conflict. It noted that the ability to deprive a litigant of her chosen counsel is a potent weapon which can be easily abused, and should therefore be viewed with a healthy level of skepticism. From there, the Court went on to hold that the appropriate test for disqualification was not whether the Kaufman firm had improperly received privileged materials, but whether that disclosure would provide the Wife with an undue advantage (in the divorce case). In this case, there was no evidence that the disclosure of these materials aided the Wife’s case in any way. Therefore, there was no basis for depriving her of the counsel she had chosen to represent her.