5D01-262 Metcalf v. Metcalf

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-262 Metcalf

Case Date: 05/28/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

KATHY L. METCALF, Petitioner, v. ALEX NOLAN METCALF, Respondent. _________________________________/ Opinion filed June 1, 2001 Petition for Certiorari Review of Order from the Circuit Court for St. Johns County, Richard G. Weinberg, Judge. Tania R. Schmidt-Alpers, Central Florida Legal Services, Inc., Palatka, for Petitioner. Charles A. Esposito, St. Augustine, for Respondent. SAWAYA, J. We have for review Kathy Metcalf's [the wife's] petition for certiorari. This case began when the wife filed a "Petition for Injunction for Protection Against Domestic Violence." Pursuant to section 741.30, Florida Statutes, the trial court entered a Case No. 5D01-262

"Temporary Injunction for Protection Against Domestic Violence" against Alex Metcalf [the husband]. See also Fla. Fam. L. R. P. 12.610. Before a hearing could be held to determine whether the injunction should be made permanent, the wife filed a motion seeking disqualification of the husband's attorney, Charles Esposito. She argued that Esposito should be disqualified from representing the husband because a month prior to filing her petition, she had consulted with Esposito's partner, Davis Upchurch, at their law

office of Upchurch & Esposito. The wife asserted that she divulged confidential information to Upchurch during the consultation and that when she consulted with him, she believed an attorney/client relationship existed. Although ultimately she did not hire Upchurch, she sought legal advice from him with the intention of hiring him to represent her in a divorce from her physically abusive husband. The wife's affidavit, which accompanied her petition, stated in part: 5. I spent approximately half and [sic] hour with Mr. Upchurch discussing confidential details relating to filing dissolution of marriage proceeding, including details of domestic violence which had occurred during my marriage to my husband. I did so with the belief that I would be hiring Mr. Upchurch to handle my dissolution of marriage. 6. Mr. Upchurch assured me that the information discussed during our meeting would be confidential and that he could now not represent my husband in a dissolution of marriage action because it would be a conflict of interest. The wife's affidavit further stated that Upchurch did not charge her for the consultation, but told her he would represent her if she paid a $2500 retainer. The wife's affidavit concluded by stating that she did not waive her attorney/client relationship with Upchurch, and she did not consent to Esposito's representation of her husband. At the hearing on the petition, Esposito testified that he did not believe there was a conflict and that the court had the discretion to decide if one did exist. Esposito also testified that he was unaware of his partner's consultation with the wife until he received her motion; that Upchurch was never retained to represent the wife; and that Upchurch was prepared to testify that he does not remember anything she told him that may be confidential. The trial court questioned whether an attorney/client relationship could be established based upon one visit, stating, "Consultation itself is not determinative of that 2

issue. This happens frequently. The question is: did they do

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