“As this court has previously observed, unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.”
How later courts described this case
- “As this court has previously observed, unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.”
- “[T]he trial judge correctly followed the law by refusing to allow Willis to testify without taking an oath.”
Written by the judges who cited it.
The opinion
FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Case No. 5D2025-2114
LT Case No. 2023-11833-FMDL
_____________________________
SANDRA KATHERINE SMITH-
FULLERTON,
Appellant,
v.
DAVID MILES FULLERTON,
Appellee.
_____________________________
Nonfinal appeal from the Circuit Court for Volusia County.
Robert W. Pickens, III, Judge.
John N. Bogdanoff, of The Carlyle Appellate Law Firm,
Orlando, for Appellant.
Carol A. Yoon, of Doran, Foxman, Sims, Wolfe & Yoon, Daytona
Beach, for Appellee.
May 29, 2026
JAY, C.J.
Sandra Katherine Smith-Fullerton, (“Wife”), appeals from a
nonfinal order denying her motion to disqualify the law firm of
Doran, Foxman, Sims, Wolfe and Yoon, (“Doran Firm”). The Doran
Firm represents David Miles Fullerton, (“Husband”). We reverse.1
I.
On July 23, 2023, Wife filed a petition seeking to dissolve her
marriage. Husband responded with an answer and a counter-
petition. The case was initially assigned to Judge Matthew
Foxman, (“Foxman”). Foxman presided over the case for sixteen
months.
After retiring from the bench in November of 2024, Foxman
became a partner with the Doran Firm. His affiliation started in
early February of 2025. When Wife learned that Foxman had
become a partner at the Doran Firm, Wife moved to disqualify the
firm from further representation of Husband. A successor judge,
Judge Robert Pickens, was assigned to the case.
At the first hearing on the motion to disqualify, Theodore
Doran, founding partner of the Doran Firm, told the court that
Foxman was hired as a partner at his firm. He said that Foxman
was employed to represent clients in the areas of criminal and
family law. He later refined that by saying “anything [Foxman] can
do, he wants to do, he’s welcome.”
As to the Smith-Fullerton file, Doran said that the file was in
the care of a firm paralegal, Barbara Shoner. He did not know the
file’s location other than it was in the firm’s building. He admitted
that if Foxman wanted to access the file, he could access it, but
believed potential access was not an issue because Foxman “is a
man of great integrity.” Important to Doran’s participation at the
hearing, Doran was never sworn as a witness. Meaning, Doran
never took an oath or affirmation as required by Section 90.605(1),
Florida Statutes.
As the hearing was finishing, Foxman entered the courtroom
1 We have jurisdiction under Florida Rule of Appellate
Procedure 9.130(a)(3)(E).
2
and requested permission to put something on the record. The
following is from the hearing transcript:
FOXMAN: I just prefer it on so there’s a record for
anybody. Here’s the thing. Throw me out of this, but keep
Mr. Doran. We’ve already done that. No one has done
anything wrong.
THE COURT: What do you mean?
FOXMAN: That’s your ruling, I’m just telling you, and
I’m going to get cross-examined on it, I get it. But nothing
bad happened, but he’s entitled to an attorney of his
choosing. She’s entitled to object about it, but they’re
entitled to me to have nothing to do with it, which is
what’s occurred; nothing. . . . I stand ready for the Court.
I’m not under subpoena. My point is either side can ask
something. I’m just telling you, this is as clear as it can
get for you, and I’ll answer any question either side
wants, including the Court’s.
The initial hearing was continued until June of 2025. At the second
hearing, the following testimony was provided by Foxman:
COUNSEL: Have you been screened from participating
in this matter since your employment with the Doran
Law Firm?
FOXMAN: I don’t know if it’s screening. I just haven’t
participated, and you and Mr. Doran haven’t informed me
of anything—nothing.
On cross-examination, Foxman was asked whether he had given
notice to opposing counsel in compliance with Florida Bar Rule 4–
1.12(c)(2).
COUNSEL: At any point in time did you move forward
and notify our office that you were going to be working for
the Doran Law Firm?
FOXMAN: Notify your specific office?
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COUNSEL: Yes, sir.
FOXMAN: I’m not aware of that occurring.
COUNSEL: And do you know whether Mr. Doran
notified the office that you would be working in that law
firm?
FOXMAN: No idea.
In an order dated June 30, 2025, the judge denied Wife’s
motion to disqualify. The court determined that “the testimony of
both Mr. Doran and Mr. Foxman [was] sufficient . . . to conclude
the firm . . . screened Mr. Foxman from participation in the case
and that [Foxman] [would] not be directly apportioned any of the
fee.” Additionally, the court found that “Foxman received no
confidential information regarding the [Wife] when presiding over
this case.” In doing so, the court “dr[ew] a distinction between a
mediator, who is often privy to case strategy and other confidential
information, and a judge who is forbidden from discussing a case
without both parties present.”
Even though the court recognized that the firm never gave
notice that Foxman was joining the firm, the timing of Wife’s
motion demonstrated to the court that Wife had knowledge of
Foxman’s new affiliation. As the court said it, “[a]t the latest,
[Wife] filed her Motion to Disqualify the next business day after
Mr. Foxman joined the firm, thereby requiring this Court to
ascertain compliance with” the notice provision of the Bar Rule.
Moreover, the court disregarded Wife’s concern that Doran was
unsworn at the hearing. The court thought it significant that
Doran was an active member of The Florida Bar. As a Florida Bar
member, Doran was bound by Bar Rule 4–3.3(a)(1), which
prohibits a lawyer from knowingly making a false statement to a
tribunal. The court suggested that this rule obviated the need for
a statutory oath or affirmation. As an alternative basis for its
ruling, even disregarding Doran’s averments, the court found
“there [was still] sufficient evidence to ensure compliance with
Rule 4–1.12.” This appeal followed.
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II.
“[A] trial court’s decision on a motion for disqualification is
reviewed for abuse of discretion. . . .” Stewart v. Bee-Dee Neon &
Signs, Inc., 751 So. 2d 196, 205 (Fla. 1st DCA 2000). But a “trial
court’s discretion is limited by rules, statutes, and case law, and a
trial court abuses its discretion when its ruling is based on an
erroneous view of the law.” Wilson v. State, 327 So. 3d 961, 962
(Fla. 1st DCA 2021) (citations omitted). A trial court also “abuses
its discretion if its ruling is based on . . . ‘a clearly erroneous
assessment of the evidence.’” McDuffie v. State, 970 So. 2d 312, 326
(Fla. 2007) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990)).
A.
Our analysis of the trial court’s compliance with the rule
begins with the rule’s language. The two relevant sections of Rule
4–1.12(a) and (c), provide:
RULE 4–1.12 FORMER JUDGE OR ARBITRATOR,
MEDIATOR OR OTHER THIRD-PARTY NEUTRAL
(a) Representation of Private Client by Former
Judge, Law Clerk, or Other Third-Party Neutral.
Except as stated in subdivision (d), a lawyer shall not
represent anyone in connection with a matter in which
the lawyer participated personally and substantially as a
judge or other adjudicative officer or law clerk to such a
person or as an arbitrator, mediator, or other third-party
neutral, unless all parties to the proceeding give informed
consent, confirmed in writing.
(c) Imputed Disqualification of Law Firm. If a
lawyer is disqualified by subdivision (a), no lawyer in a
firm with which that lawyer is associated may knowingly
undertake or continue representation in the matter
unless:
(1) the disqualified lawyer is timely screened from
any participation in the matter and is directly
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apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and
any appropriate tribunal to enable it to ascertain
compliance with the provisions of this rule.
R. Regulating Fla. Bar 4–1.12(a), (c) (emphasis added).
The initial part of the rule has two requirements. First, the
disqualified lawyer must be timely screened from any
participation in the case. Second, the disqualified lawyer is
prohibited from directly receiving any portion of the fee. R.
Regulating Fla. Bar 4–1.12(c)(1). The evidence supplied regarding
the proper screening of Foxman was taken at the two hearings on
Wife’s motion.
Although he did not take an oath or affirmation, Doran offered
statements about case screening prior to Foxman’s hiring. While
Doran acknowledged he did not have a staff meeting about the
screening—and also admitted there was nothing done in writing—
he did have individual meetings about the case and stated that
“[e]verybody” understood the case had to be “walled off.” While he
admitted Foxman could access the case file, Doran was not
concerned about Foxman’s potential access because Doran was
confident Foxman would not look at the file.
In contrast to Doran’s unsworn statements, Foxman, under
oath, indicated he was not aware of any firm-wide screening.
Specifically, he testified, “I don’t know if it’s screening. I just
haven’t participated, and you [Ms. Yoon] and Mr. Doran haven’t
informed me of anything—nothing.” Foxman was the only Doran
witness that was sworn at the hearings.
B.
Section 90.605(1), Florida Statutes establishes that “[b]efore
testifying, each witness shall declare that he or she will testify
truthfully, by taking an oath or affirmation in substantially the
following form: ‘Do you swear or affirm that the evidence you are
about to give will be the truth, the whole truth, and nothing but
the truth?’” § 90.605(1), Fla. Stat. (2024). This means that “[i]f a
witness does not either swear or affirm to tell the truth, the
6
witness will not be allowed to testify.” Charles W. Ehrhardt &
Terry P. Lewis, Florida Evidence § 605.1 (2026 ed.).2
As our supreme court recognized almost a hundred years ago,
“[a] person may be capable of testifying and still [not be]
‘competent’ to testify.” Crocket v. Cassels, 116 So. 865, 866 (Fla.
1928). “‘Competency,’ as applied to a witness, involves both
capability and qualification, and imports the existence of all
essentials to render the witness lawfully fit to testify.” Id. “In order
to be competent, a witness . . . must qualify himself by taking an
oath which he considers binding on his conscience.” Id. Thus, “[a]n
unsworn witness is not competent to testify.” Houck v. State, 421
So. 2d 1113, 1115 (Fla. 1st DCA 1982); see also Willis v. Romano,
972 So. 2d 294, 295 (Fla. 5th DCA 2008) (“[T]he trial judge
correctly followed the law by refusing to allow Willis to testify
without taking an oath.”); Daughtrey v. Daughtrey, 944 So. 2d
1145, 1148 (Fla. 2d DCA 2006) (“As this court has previously
observed, unsworn representations by counsel about factual
matters do not have any evidentiary weight in the absence of a
stipulation.”); cf. U.S. v. Hawkins, 76 F.3d 545, 551 (4th Cir. 1996)
(“Rule 603 of the Federal Rules of Evidence provides that ‘[b]efore
testifying, every witness shall be required to declare that the
witness will testify truthfully. . . .’ Thus, testimony taken from a
witness who has not given an oath or affirmation to testify
truthfully is inadmissible.” (citation omitted)).
Here, Doran’s unsworn statements were not testimonial
evidence and failed to establish admissible facts. Even though the
trial court relied upon Doran’s Florida Bar membership to
establish the veracity of his unsworn assertions, the statements
were still unsworn. Accordingly, Doran’s declarations were not
competent evidence and should have been excluded. See Hawkins,
76 F.3d at 550–51 (finding that the unsworn statements of an
Assistant United States Attorney were inadmissible and should
not have been considered as proof of defendant’s guilt); Crockett,
116 So. at 866 (noting that without an oath, a witness “is not a
2 But “[w]hen a trial judge determines that a child is
competent to testify, it may not be necessary for the child to take
an oath.” Id. (emphasis added).
7
competent witness”).
C.
The second part of the rule regulating former judges is equally
straightforward. Written notice must be promptly given to the
parties and any appropriate tribunal to enable the tribunal to
ascertain compliance with the provisions of the rule. R. Regulating
Fla. Bar 4–1.12(c)(2). Here, there is no dispute that the Doran Firm
failed to give written notice to Wife about Foxman joining the firm.
And there was no evidence of notice to the court about Foxman’s
new affiliation. Thus, the Doran Firm failed to comply with Rule
4–1.12(c)(2).
IV.
Because Foxman presided “personally and substantially as a
judge,” he is precluded from representing Husband. And Foxman’s
disqualification is imputed to all of the Doran lawyers because the
Firm failed to comply with Rule 4–1.12(c). Accordingly, the trial
court should have disqualified the Doran Firm.
REVERSED.
LAMBERT and EDWARDS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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