After contentious discovery litigation, including a midnight deposition that was suspended by Lawyer before it began due to the refusal of the deponent’s counsel to turn over a particular powerpoint presentation, Lawyer filed a motion for order to show cause why the opposing party should not be sanctioned for violating a discovery order.  The trial court ordered Lawyer to prepare an order to show cause, and appointed him to prosecute the criminal contempt proceeding.

          The trial judge entered a proposed order to show against a witness and opposing counsel that was prepared by Lawyer.  Lawyer was named as the prosecutor for the proceedings on that show cause order as well.  At that point the opposing party moved to disqualify the trial judge, and that motion was granted.  A successor judge took over.  The opposing party moved to disqualify Lawyer as a material witness to some of the underlying facts and someone who was “personally invested in the outcome of the proceedings.”  The motion to disqualify Lawyer was denied.

          Opposing counsel filed petitions for prohibition with the Third DCA.  The appeals court determined that prohibition was available as a remedy and concluded there was no basis on which to hold opposing counsel in indirect criminal contempt.

          Although not necessary to its decision, the court commented on the question of whether it would be appropriate to disqualify Lawyer as the special prosecutor due to “the paucity of case law on this discrete issue . . . as to whether a lawyer, who is also a material witness in an indirect criminal contempt proceeding, may also serve as the special prosecutor in the proceeding.”

          The court concluded:  “We believe Rule Regulating the Florida Bar 4-3.7’s general prohibition against a lawyer acting as an advocate at a trial in which the lawyer will be a witness will, under ordinary circumstances, prevent a lawyer who is a material witness to events forming the very core of an indirect criminal contempt proceeding from also assisting the trial court as the prosecutor in those same proceedings.  Further, because Florida’s courts have consistently held that prohibition is an appropriate remedy to prevent a contempt hearing from proceeding before a judge who should be disqualified, we similarly conclude that prohibition will lie to prevent a lawyer who is a material witness to events forming the core of an indirect criminal contempt proceeding from also serving as the prosecutor in those same proceedings.”  Hudson v. Marin, __ So.3d __( Fla. 3d DCA, Nos. 3D17-2754, 3D17-2755, 8/15/2018), 2018 WL 3862893.