No More Lip Service: Why Florida Appellate Rules Should Allow for Non-Final Appeal of Orders Granting Disqualification of a Party's Attorney
![handle is hein.journals/stet42 and id is 519 raw text is: NO MORE LIP SERVICE: WHY FLORIDA
APPELLATE RULES SHOULD ALLOW FOR
NON-FINAL APPEAL OF ORDERS GRANTING
DISQUALIFICATION OF A PARTY'S ATTORNEY
Mark Miller*
The United States Supreme Court has long recognized that
our American system of justice provides individuals with the
right to retain the attorney of their choice to represent their
interests in judicial proceedings.' Florida appellate courts pro-
tect that right by allowing a litigant who loses an attorney
because the trial court granted the opposition's motion to disqual-
ify to petition the appellate courts for a writ of certiorari to imme-
diately review the trial court's order disqualifying the litigant's
attorney.2 This Article suggests that lower court decisions regard-
ing the disqualification of counsel should be reviewable by non-
final appeal under Florida Rule of Appellate Procedure 9.130,
which would allow de novo review of a decision to grant disquali-
fication of a party's chosen counsel, rather than the more deferen-
tial certiorari standard.'
* 0 2013, Mark Miller. All rights reserved. J.D., with honors, University of Florida
College of Law, 1996; B.A., with honors, University of Florida, 1993. Mark Miller practices
at the Appellate Law Office of Mark Miller, P.A., in Stuart, Florida, and Cape May, New
Jersey. After graduating from University of Florida's College of Law, he clerked for Judge
Henry Lee Adams, Jr., of the U.S. District Court for the Middle District of Florida in Jack-
sonville, and Judge Emerson R. Thompson, Jr., of the Fifth District Court of Appeal for
the State of Florida in Daytona Beach. He is a member of the Florida and New Jersey
state bars and focuses his solo practice on civil and criminal appeals in state and federal
court.
1. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 441 (1985) (Brennan, J., concur-
ring).
2. See Frye v. Ironstone Bank, 69 So. 3d 1046, 1049 (Fla. 2d Dist. App. 2011) (stating
that [o]rders granting or denying motions to disqualify a party's attorney are reviewable
by certiorari) (citing Gonzalez ex rel. Colonial Bank v. Chillura, 892 So. 2d 1075, 1076
(Fla. 2d Dist. App. 2004)); Pinebrook Towne House Ass'n, Inc. v. C.E. O'Dell & Assocs., Inc.,
725 So. 2d 431, 433 (Fla. 2d Dist. App. 1999) (concluding that [o]rders that grant or deny
motions to disqualify a party's attorney are properly reviewed by certiorari).
3. Florida Rule of Appellate Procedure 9.130 applies to appeals to the district courts
of appeal of the non-final orders [enumerated in the rule] and to appeals to the circuit
court of non-final orders when provided by general law. Fla. R. App. P. 9.130 (2006).](ViewImageLocal?handle=hein.journals/stet42&div=22&collection=&method=preview&ext=.png&size=3)
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