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

Decision Date07 October 1974
Docket NumberNo. 74-2286,74-2286
PartiesIoana 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.
CourtU.S. Court of Appeals — Fifth Circuit

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 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 (Supp.1974).

Disciplinary Rule DR 5-101(b) reads:

A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

Disciplinary Rule DR 5-102(A) provides:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw form the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(b)(1) through (4).

Although there has been little interpretation of the current provisions. 2 Florida courts have regularly applied the previous incarnation of these provisions. 3 Thus, in In re Estate of Freeman, Fla.Dist.Ct. of App., 3d Dist., 1970, 240 So.2d 656, the court reversed a trial judge who allowed a witness to the testamentary capacity of the deceased to continue as executor's counsel. In dudley v. Wilson, 1943, 152 Fla. 752, 13 So.2d 145, the Florida Supreme Court upheld the decision of the lower court to prevent plaintiff's counsel from testifying about the nature of the consideration for the conveyance of real property given the deceased party, for whom plaintiff was administrator. See also Millican v. Hunter, Fla.1954, 73 So.2d 58; Hubbard v. Hubbard, Fla.Dist.Ct. of App., 4th Dist., 1970, 233 So.2d 150.

Plaintiffs' claim that removal of their lawyer will work a substantial hardship and that, under exception (4) to 5-101(b), he should therefore be reinstated. They...

To continue reading

Request your trial
25 cases
  • April 1977 Grand Jury Subpoenas, In re
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 7, 1978
    ...541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). E. g., Hull v. Celanese Corp., 513 F.2d 568, 570-71 (2d Cir. 1975); Draganescu v. First Nat'l Bank, 502 F.2d 550, 551 (5th Cir. 1974); Richardson v. Hamilton Int'l Corp., 469 F.2d 1382, 1383 n. 1 (3d Cir. 1972), Cert. denied, 411 U.S. 986, 93 S.Ct. ......
  • Borman v. Borman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 16, 1979
    ...Before the April 1975 Grand Jury, 174 U.S.App.D.C. 268, 273 n. 8, 531 F.2d 600, 605 n. 8 (D.C.Cir. 1976); Draganescu v. First Nat'l Bank, 502 F.2d 550, 551 n. 1 (5th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975) ("(a)n order erroneously depriving a party of its......
  • U.S. v. Greger
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 19, 1981
    ...D.C.Cir., 1976, 531 F.2d 600, 605 n.8; Schloetter v. Railoc of Indiana, Inc., supra, 546 F.2d at 709; Draganescu v. First National Bank of Hollywood, 5 Cir., 1974, 502 F.2d 550, 551 n.1. One commentator has argued Unlike disqualification denials, orders granting disqualification are (not) s......
  • Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 1, 1981
    ...530 F.2d 83 (5th Cir. 1976) (denial); United States v. Garcia, 517 F.2d 272 (5th Cir. 1975) (grant); Draganescu v. First National Bank of Hollywood, 502 F.2d 550 (5th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975) (grant); Uniweld Products, Inc. v. Union Carbide......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT