Draganescu v. First Nat. Bank of Hollywood, 74-2286

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before WISDOM, GOLDBERG and GEE; GOLDBERG
• Citation: 502 F.2d 550
• Parties: Ioana DRAGANESCU et al., Plaintiffs-Appellants, v. FIRST NATIONAL BANK OF HOLLYWOOD et al., Defendants-Appellees. Summary Calendar.* *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, PartI.
• Docket Number: No. 74-2286,74-2286
• Decision Date: 07 October 1974

Page 550

502 F.2d 550 Ioana DRAGANESCU et al., Plaintiffs-Appellants,
v.
FIRST NATIONAL BANK OF HOLLYWOOD et al., Defendants-Appellees. No. 74-2286 Summary Calendar.*
*Rule 18, 5 Cir.; see Isbell Enterprises, Inc.
v.
Citizens Casualty Company of New York et al., 5 Cir. 1970,
431 F.2d 409, PartI. United States Court of Appeals, Fifth Circuit. Oct. 7, 1974, Rehearing Denied Nov. 6, 1974.

John T. Carlon, Jr., Fort Lauderdale, Fla., Wm. E. Allison, St. Petersburg, Fla., John R. Vintilla, Cleveland, Ohio, for plaintiffs-appellants.

Jack F. Weins, Hollywood, Fla., for First Nat. Bank of Hollywood.

Merle Litman, Hollywood, Fla., for Schweikert.

Before WISDOM, GOLDBERG and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

This diversity case began as a suit by the heirs of Mary Radu, all Romanian nationals and residents, against defendant-appellee First National Bank of Hollywood (the bank) for negligent failure to prepare a will. Plaintiffs-appellants allege that the decedent asked Victoria Vintilla to commission defendants-appellees to draw up a will. After Victoria's first visit to the bank, John R. Vintilla, her brother and an Ohio attorney who specializes in the representation of Romanian emigrees and nationals, called the bank. He appears to be the only person who spoke with the bank's lawyer regarding the exact terms and time requirements of the proposed will.

When Mary Radu died intestate, plaintiffs-appellants hired the same John Vintilla to represent them. Pursuant to Rules of the United States District Court for the Southern District of Florida Vintilla found local co-counsel, and then instituted this action. His fee was dependent on the outcome of the case. In a Pre-Trial Order, Appendix page 2, the district judge ruled that Vintilla could not represent plaintiffs

Page 551

while appearing as a material witness for them. The judge therefore ordered Florida co-counsel to take responsibility for the suit. Plaintiffs ask us to reverse the court's order. We decline to do so.

Since only 'final judgments' are appealable, 28 U.S.C. 1291, this Court must first determine that the removal of counsel in the pre-trial order is 'final.' In Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, the Supreme Court said that a collateral order-- one which did not terminate an action-- was final and appealable when it finally determined claims separable from rights asserted in the main action, was too important to be denied review, and was too independent of the cause itself to require that the appeals court defer consideration until the whole case could be adjudicated. This Court has applied the Cohen rule to find orders on motions to disqualify counsel appealable.

As we said in (Tomlinson v. Poller, 5 Cir. 1955, 220 F.2d 308, 311) this is 'a matter entirely disconnected with the principal contention of the taxpayers in the pending suit,' and, 'This order constitutes a final decision on that ancillary matter.' Here, if the order was in error, the harm resulting therefrom is in the nature of the frustration of a public policy which cannot be aboided or mitigated by any appeal taken after the trial . . . is finally ended.

Tomlinson v. Florida Iron and Metal Inc., 5 Cir. 1961, 291 F.2d 333 at 334. See also Uniweld Products, Inc. v. Union Carbide Corp., 5 Cir. 1967, 385 F.2d 992, 994. ¹

The Florida law which guides us in evaluating the ruling of the trial court is contained in the Code of Professional Responsibility, 32 Fla.Stat.Ann. 127 (Supp.1974), adopted by the Florida Supreme Court in 1970. The provision falls under the Disciplinary Rules, about which the Florida Court says: 'The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.' Id. at 130...