1

Third District Court of Appeal

State of Florida 

Opinion filed August 16, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0503

Lower Tribunal No. 21-1637

________________

Rogelio Cordero, etc.,

Appellant,

vs.

Rolando A. Cordero,

Appellee.

An Appeal from a non-final order from the Circuit Court for MiamiDade County, Bertila Soto, Judge.

The Billbrough Firm, and G. Bart Billbrough, for appellant.

Rosenthal Law Group, and Alex P. Rosenthal and Amanda Jassem 

Jones (Weston), for appellee.

Before LOGUE, C.J., and HENDON, and GORDO, JJ. 

HENDON, J.
2

Rogelio Cordero (“Appellant”), pursuant to Florida Rule of Appellate 

Procedure 9.130(a)(3)(E), seeks to reverse a non-final order granting his 

brother’s, Rolando Cordero (“Rolando Jr.”), motion to disqualify the 

Appellant’s attorney, Gustavo Gutierrez (“Gutierrez”), in the underlying 

probate dispute. We affirm. 

Facts

The Decedent had two sons – the Appellant and Rolando Jr. The 

Appellant was appointed personal representative of his father’s estate. The 

Decedent’s 2018 Will left the entire estate to the Appellant, with no 

provision made for the Appellant’s brother, Rolando Jr. Rolando Jr. filed an 

adversary proceeding in probate seeking to revoke the Decedent’s 2018 

Will, alleging lack of capacity and the Appellant’s undue influence. 

Rolando Jr. asserted that a 2012 Will that split the estate equally 

between the two brothers was the true will of the Decedent. The attorney 

who prepared the 2012 Will was Gutierrez. In 2012, Gutierrez assisted the 

Decedent by also transferring two real properties from the Decedent to the 

Decedent as a life estate with the remainder interests in Appellant and 

Rolando Jr., allegedly evidencing the Decedent’s intent to divide the estate 

equally between the two siblings. Rolando Jr. asserted that after 2012, the 

Decedent’s mental capacity declined so that by 2018, he was of such 
3

diminished capacity that he did not understand the nature of his assets. 

Further, Gutierrez had been counsel for Rolando Jr. in several business 

and personal transactions, and thus had a conflict of interest by 

representing the Appellant in this estate dispute. Rolando Jr. invoked Rule 

4-1.7 (Conflict of Interest, Current Clients), Rule 4-1.9 (Conflict of Interest, 

Former Client), Rule 4-1.10 (Imputation of Conflicts of Interest; General 

Rule), and Rule 4-1.13 (Organization as Client), of the Rules Regulating 

the Florida Bar.

In the Appellant’s response to the motion to disqualify he asserted, 

among other issues, the following affirmative defenses: diminution in value 

of the Estate; an assertion that the 2018 Will represents the uninfluenced 

desires of the Decedent with reference to the disposition of his Estate; his 

assertion that the Decedent had reasons to disinherit Rolando Jr.; denial 

that the Decedent lacked the testamentary capacity to execute the 2018 

Will; and denial that the Decedent was under the undue influence of the 

Appellant, who did nothing more than perform the duties of a dutiful son. 

The Appellant’s answer also asserted misconduct on the part of Rolando 

Jr. following a buyout of the family business from former business partners. 

Appellant alleged that Rolando Jr.’s conduct in the business, as well as his 

conduct concerning property owned by the Decedent in Costa Rica, 
4

disenchanted the Decedent regarding Rolando Jr.’s motivations, resulting 

in his exclusion from the 2018 Will.

Gutierrez responded that although he had represented the Decedent 

and Rolando Jr. in various business matters since 2012, he was not 

involved in the preparation of the 2018 Will and had no knowledge of its 

contents. Further, Gutierrez asserted that at the time he undertook to 

represent the Appellant, he was not representing Rolando Jr. in any matter. 

In July 2021, the trial court held an evidentiary hearing on the 

Appellant’s motion to disqualify Gutierrez. The parties and Gutierrez 

testified, and, at the conclusion of the hearing, the trial court denied 

Rolando Jr’s. motion to disqualify Gutierrez. In its order, the trial court 

stated there was no evidence to support a finding that Gutierrez’s prior 

representations would preclude him from currently representing the 

Appellant in the will contest litigation.

In November 2021, Rolando Jr. filed an amended complaint, once 

again alleging the Decedent’s lack of capacity and the Appellant’s undue 

influence, and adding a claim to recover assets allegedly misappropriated 

by the Appellant. The Appellant denied the allegations. Over a year later, 

Rolando Jr. filed a renewed motion to disqualify Gutierrez, asserting that,

through his prior representations in business and personal transactions for 
5

the Decedent, and in mediating disputes between the brothers and their 

father, Gutierrez obtained confidential information that was now being used 

against him in the probate dispute. Further, he asserted that Gutierrez had 

earlier failed to disclose that he would be the Appellant’s fact witness in the 

probate dispute. 

On February 15, 2023, the trial court held a non-evidentiary hearing 

on Rolando Jr.’s renewed motion to disqualify. At that hearing, the 

Appellant acknowledged that Gutierrez would be called as a necessary 

witness in the litigation and conceded that Gutierrez could not be the 

Appellant’s trial counsel. The Appellant’s other attorney, Mr. Barreto, 

conceded that under the Rules Regulating the Florida Bar, Gutierrez could

not be trial counsel, but argued that Gutierrez should not be disqualified 

from participating in the litigation as a whole, as he “can prepare and he 

can work post. The rules are clear. He can sit at the table, but he can't be 

trial counsel.”

After hearing from all the involved parties, the trial court issued its 

order granting Rolando Jr.’s motion to disqualify. The trial court found that 

the new information presented to the trial court, that the Appellant would 

call Gutierrez as a fact witness, precluded Gutierrez’s participation in the 

litigation. The trial court found, in pertinent part:
6

The Court finds that Mr. Gutierrez is likely to be a necessary 

fact witness in this case because he was an integral part of 

Decedent’s estate planning and intimately involved in lawsuits 

by and against [Corporation] Nema, which are highly relevant 

issues in this case. During the hearing, Defendant Rogelio 

[Appellant] conceded that Mr. Gutierrez is a necessary fact 

witness that [Appellant] intends on calling to testify at trial. The 

exceptions to Rule 4-3.7(a) do not apply because (1) the 

testimony would relate to highly contested issues, (2) the 

testimony will not relate solely to a matter of formality, (3) the 

testify [sic] will not relate to services rendered in this case, and 

(4) even though disqualifying Mr. Gutierrez may be a hardship 

on [Appellant], it is not a substantial hardship because 

Defendant Rogelio has already had other counsel involved in 

the case who is more than competent to represent Defendant 

Rogelio at trial and the trial is being continued for another 6 

months. The Court also notes that any hardship to Defendant 

Rogelio is outweighed by the prejudice to Plaintiff Rolando if 

Mr. Gutierrez were permitted to continue representing 

[Appellant].

This appeal ensued.1

The Court’s standard of review for orders entered on motions to 

disqualify counsel is that of an abuse of discretion. FlexFunds Holdings, 

LLC v. Rivero, 341 So. 3d 478, 480–81 (Fla. 3d DCA 2022). “We note, 

however, that “disqualification of a party's lawyer in a civil case is a drastic 

remedy, [which] must be employed only in limited circumstances.” Id. at 

481 (quoting Gutierrez v. Rubio, 126 So. 3d 320, 321 (Fla. 3d DCA 2013)). 

1 A nonfinal order granting or denying a motion to disqualify counsel is 

reviewable by appeal. See Fla. R. App. P. 9.130(a)(3)(E); In re Amends. to 

Fla. R. of App. Proc.-2017 Regular-Cycle Report, 256 So. 3d 1218 (Fla. 

2018); Akerman LLP v. MSP Recovery Claims, Series LLC, 338 So. 3d 309 

(Fla. 3d DCA 2022).
7

Analysis

“An order disqualifying counsel must be tested against the standards 

imposed by the Rules Regulating the Florida Bar.” Kemp Invs. N., LLC v. 

Englert, 314 So. 3d 734, 736 (Fla. 5th DCA 2021). One of the grounds the 

trial court cited for disqualifying Gutierrez was that he would be called as a 

fact witness. Rule 4-3.7(a) of the Rules Regulating the Florida Bar, Lawyer 

as Witness, provides: 

(a) When Lawyer May Testify. A lawyer shall not act as 

advocate at a trial in which the lawyer is likely to be a 

necessary witness on behalf of the client unless:

(1) the testimony relates to an uncontested issue;

(2) 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) the testimony relates to the nature and value of legal 

services rendered in the case; or

(4) disqualification of the lawyer would work substantial 

hardship on the client.

As none of the listed exceptions apply to Gutierrez, the trial court 

appropriately disqualified him from participating at trial. Case law suggests 

that the disqualification should be limited to Gutierrez’s participation in the 

trial, rather than the entire case. See Graves v. Lapi, 834 So. 2d 359, 360 

(Fla. 4th DCA 2003) (concluding that the order disqualifying counsel was 

too broad in not limiting the disqualification to trial advocacy, an issue 

which petitioners clearly raised below in their reply to the motion). Because 
8

the rule only prohibits a lawyer from serving as “trial” counsel for a client 

where he is likely to be a necessary witness for that client, “it follows that a 

lawyer may act as an advocate at pre-trial (before the start of the trial) and 

posttrial (after the judgment is rendered) proceedings.” Columbo v. Puig, 

745 So. 2d 1106, 1107 (Fla. 3d DCA 1999) (interpreting the rule's key 

words “at trial” to mean that counsel should be permitted to represent party 

“in any proceedings before trial and after trial”); Goff v. Goff, 276 So. 3d 83, 

87–88 (Fla. 2d DCA 2019). Moreover, “[a] lawyer is not a necessary 

witness when there are other witnesses available to testify to the same 

information.” Steinberg v. Winn-Dixie Stores, Inc., 121 So. 3d 622, 624 

(Fla. 4th DCA 2013) (citing Allstate Ins. Co. v. English, 588 So. 2d 294, 295 

(Fla. 2d DCA 1991)); Cerillo v. Highley, 797 So.2d 1288 (Fla. 4th DCA 

2001) (specifically quashing an order disqualifying counsel from 

participating in pre-trial proceedings); Fleitman v. McPherson, 691 So. 2d 

37 (Fla. 1st DCA 1997). 

The Appellant argues that the trial court went too far by disqualifying 

Gutierrez from representing Rolando Jr. throughout the entire litigation. We 

disagree. This case also involves application of Rule Regulating the Florida 

Bar 4-1.9, which prohibits an attorney from representing a new client 

against a former client if that attorney will (a) represent another person in 
9

the same or a substantially related matter in which that person's interests 

are materially adverse to the interests of the former client unless the former 

client gives informed consent (which the Appellant did not give); (b) use 

information relating to the representation to the disadvantage of the former 

client except as these rules would permit or require with respect to a client 

or when the information has become generally known; or (c) reveal 

information relating to the representation except as these rules would 

permit or require with respect to a client. R. Regulating Fla. Bar 4-1.9 

(emphasis added); see State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 

2d 630, 633 (Fla. 1991) (holding a party “seeking to disqualify opposing 

counsel based on a conflict of interest must demonstrate that (1) an 

attorney-client relationship existed, thereby giving rise to an irrefutable 

presumption that confidences were disclosed during the relationship, and 

(2) the matter in which the law firm [or attorney] subsequently represented 

the interest adverse to the former client was the same or substantially 

related2 to the matter in which it represented the former client.”) When 

these two elements are shown, rule 4–1.9 creates “an irrefutable 

presumption that confidences were disclosed” between the client and the 

2 “Matters are ‘substantially related’ for purposes of this rule if they involve 

the same transaction or legal dispute, or if the current matter would involve 

the lawyer attacking work that the lawyer performed for the former client.” 

Comment to R. Regulating Fla. Bar 4–1.9.
10

attorney. Young v. Achenbauch, 136 So. 3d 575, 583 (Fla. 2014) (quoting 

K.A.W., 575 So. 2d at 633–34) (holding a party “seeking disqualification 

under rule 4–1.9 does not have to demonstrate actual prejudice to the 

former client as a result of the subsequent representation because the 

existence of an attorney-client relationship ‘giv[es] rise to an irrefutable 

presumption that confidences were disclosed.’”); see Gaton v. Health Coal., 

Inc., 745 So. 2d 510, 511 (Fla. 3d DCA 1999). 

In this case, there is no dispute that Gutierrez had an attorney-client 

relationship with Rolando Jr. and the Decedent for several years, 

representing both since 2012 in a variety of personal and business matters. 

Gutierrez prepared the Decedent’s 2012 Will and certain trust documents 

that involved both of his sons; he can testify to the Decedent’s 

conversations and intent regarding his estate planning over these years, 

and he mediated the business disputes between the parties involving the 

Decedent’s corporation, Nema. All of these issues were raised in the 

underlying pleadings and appear to be relevant to the current will dispute 

litigation. 

Applying Rule 4–1.9(a) to the circumstances present in this case, it is 

undisputed that Gutierrez represented Rolando Jr. in the same or a 

substantially related matter in which Rolando Jr.’s interests are materially 
11

adverse to the interests of the Appellant. Further, under subsection (b) of 

the rule, through Gutierrez, the Appellant would be able to use information 

relating to Rolando Jr.’s and the Decedent’s representation to Rolando Jr.’s 

disadvantage. We note that the trial court specifically observed that any 

hardship to the Appellant was outweighed by the prejudice to Rolando Jr. if 

Gutierrez were permitted to continue representing the Appellant, and 

further, that the Appellant had other counsel to represent him. Accordingly, 

we affirm. 

Affirmed.