Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Is the fact that a lawyer may be called as a witness in a Florida family law case enough to disqualify the lawyer from representing a party in the case? This was an issue in Rivera v. Rivera-Chong, 1D2024-2697 (Fla. 1st DCA February 18, 2026).
After the parties divorced, they engaged in post-dissolution proceedings. During those post-dissolution proceedings, the former wife married her lawyer. When the former husband found out, he moved to disqualify the lawyer from representing the former wife on the grounds that the lawyer may be called as a witness in the case. At a non-evidentiary hearing, the trial court granted the motion based on speculation that the lawyer may be called as a witness. The former wife appealed.
The appellate court reversed, holding “The record also shows no certainty whether Former Husband would call counsel as a witness. Former Husband offered no evidence that counsel’s testimony would be contrary to his client, let alone any evidence of the content of counsel’s likely testimony.[internal citation omitted]. And the record contains no evidence as to how Rule 4-3.7 would apply. Rather, the trial court speculated about the substance of counsel’s potential testimony and focused on the legal standard it would need to apply in resolving the pending pleadings—the best interest of the children. Nothing in Rule 4-3.7 contemplates that legal standard being applied to a disqualification request.”
The court concluded “Finally, we note that the disqualification order granted broad relief: complete disqualification of counsel from representing Former Wife. Nothing limited the scope of the disqualification to specific matters or phases of litigation for which counsel would be a witness. We are aware of the trial court’s concern that Former Wife’s chosen counsel (her new spouse) would potentially cause a ‘train wreck in the middle of trial or right before trial.’ But ‘[d]isqualification of counsel is an extraordinary remedy—one that should be rare.’ Phinney v. Phinney, 50 Fla. L. Weekly D207, D207 (Fla. 3d DCA Jan. 15, 2025). In our adversarial legal system, a party’s choice of counsel is an important right. Given the lack of an evidentiary record to support the trial court’s broad disqualification order, we must reverse.”
Nothing in this article is intended to be legal advice. Schedule a consultation with a Miami family law attorney to determine the next best steps in your case.