Live and Let Live, Inc. v. Carlsberg Mobile Home Properties, Ltd.-'73
| Decision Date | 25 September 1980 |
| Docket Number | No. SS-393,SS-393 |
| Citation | 388 So.2d 629 |
| Parties | LIVE AND LET LIVE, INC., Petitioner, v. CARLSBERG MOBILE HOME PROPERTIES, LTD.-'73, and Carlsberg Resources Corporation, Respondents. |
| Court | Florida District Court of Appeals |
Herman S. Paul of Lewis, Paul, Isaac & Castillo, Jacksonville, for petitioner.
C. Harris Dittmar and Charles P. Pillans, III, of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for respondents.
This is a petition for writ of common law certiorari to review an order of the trial court which, among other things, granted the motion of respondents, defendants below, to require withdrawal of Herman S. Paul and the firm of Lewis, Paul, Isaac and Castillo, P.A., as counsel for petitioner.
The suit below is an action for damages for breach of contract which was originally filed by petitioner against one of the present respondents, Carlsberg Mobile Homes Properties, Ltd.-'73, a California limited partnership. The cause was then removed to the U. S. District Court for the Middle District of Florida on motion of the respondent alleging diversity of citizenship between it and petitioner. There a second respondent, Carlsberg Resources Corporation, a California corporation, the general partner of respondent partnership, was added as an additional defendant. Before commencement of trial in the federal court, counsel for respondents moved to dismiss the action on the grounds of lack of jurisdiction contending that the limited partnership had limited partners who were residents of Florida which destroyed the diversity. The motion was denied. The case was then tried by jury, and a verdict was rendered in favor of petitioner in the sum of $834,020.04. Respondents subsequently renewed their motion to dismiss for lack of diversity jurisdiction, and the trial court granted same, setting aside the judgment and remanding the cause to the state court from which it had come. Thereafter, former counsel for respondents withdrew and were replaced by present counsel for respondents.
Petitioner contends that the trial court's order requiring withdrawal of its attorney and substitution of new counsel is a departure from the essential requirements of law.
The Disciplinary Rules which are a part of the Code of Professional Responsibility promulgated by the Supreme Court of Florida, In Re Integration Rule of the Florida Bar, 235 So.2d 723 (Fla.1970), set the minimum standards of conduct for attorneys and, in this case, DR 5-101(B) and Dr 5-102(A) and (B) provide the standards for determining the correctness of the Circuit Court's order. DR 5-101(B) provides:
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, . . .
DR 5-102 provides:
(A) 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 from the conduct of the trial and his firm, if any, shall not continue representation in the trial (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.
The ethical considerations underlying the canons and disciplinary rules deal specifically with the reason why an attorney cannot act both as attorney and witness. EC 5-9 provides as follows:
Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective...
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...in which adversary could disassociate client's chosen counsel). AlliedSignal's reliance on Live & Let Live, Inc. v. Carlsberg Mobile Home Properties, Ltd.-'73, 388 So.2d 629 (Fla. 1st DCA 1980), is misplaced. That case addresses the former code of professional responsibility. See Fla. Bar C......
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...of counsel. State ex rel. Oldham v. Aulls, 408 So.2d 587 (Fla. 5th DCA 1981). See also Live & Let Live, Inc. v. Carlsberg Mobile Home Properties, Ltd.-73, 388 So.2d 629 (Fla. 1st DCA 1980). To determine its correctness, the order must be tested against the standards imposed by the Disciplin......
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