attorney-client privilege in Florida

2021Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994) (“The burden of establishing the attorney-client privilege rests on the party claiming it.”).

2018Nemours contends that the amended affidavit filed by its in-house counsel, received and considered by the trial court without objection, shows that the documents now ordered to be disclosed fall within the following five-prong criteria established by the Florida Supreme Court in Southern Bell Telephone & Telegraph Co. v. Deason , 632 So.2d 1377 (Fla. 1994), for use by courts when analyzing whether a communication by employees of a corporation to corporate counsel is protected by the attorney-client privilege: (1) the communication would not have been made but for the contemplation of legal ser

2014Tobacco Co. v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997) (“The attorney-client privilege is the oldest confidential communications privilege known in the common law.”).

2014Tobacco Co. v. State, 697 So. 2d 1249, 1252 (Fla. 4th DCA 1997) (“The attorney-client privilege is the oldest confidential communications privilege known in the common law.”).

2024Air Lines v. Gellert, 431 So. 2d 329, 331, 333 (Fla. 3d DCA 1983) (holding that records of payments made by client to their attorney do not implicate the attorney-client or work-product privileges); Finol v. Finol, 869 So. 2d 666, 666 (Fla. 4th DCA 2004) (dismissing certiorari petition in which petitioner asserted his billing and payment records were protected by the attorney-client privilege and not subject to discovery; noting that the records sought were relevant and explaining that if the records contained descriptions of services rendered which would reveal the mental impressions and opin

2008NOTES [1] Similarly, in cases involving the attorney-client privilege, with few exceptions, "the identity of a client is not privileged." In re State Attorney's Office Investigative Subpoena Dated November 2, 1983, 444 So.2d 592 , 594 (Fla. 2d DCA 1984); see also Eastern Air Lines, Inc. v. Gellert, 431 So.2d 329, 331 (Fla. 3d DCA 1983) (holding that where Gellert sought names and addresses of parties whom attorney called long-distance, attorney-client privilege was not implicated).

2000Further, the waiver of the attorney-client privilege occurs "when [the defendant] file[s] a motion for postconviction relief claiming ineffective assistance of counsel." Reed, 640 So.2d at 1097 (emphasis added).

2000Reed v. State, 640 So.2d 1094, 1097 (Fla. 1994) (quoting Wilson v. Wainwright, 248 So.2d 249, 250 (Fla. 1st DCA 1971)). [9] In the present proceeding, by filing ineffectiveness and conflict of interest claims against trial counsel in the Worden case, Owen waived the attorney-client privilege in that case.

2019Co. v. Hess, 814 So. 2d 1240, 1243 (Fla. 5th DCA 2002) (citing Shell Oil Co. v. Par Four P’ship, 638 So. 2d 1050, 1050 (Fla. 5th DCA 1994) (holding that, “when communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not”)); see also Dominguez, 269 So. 3d at 626 (emphasis in original) (“To the extent that Citizens sought documents relating to communications between the firm and the homeowners regarding the loss, this is an attempt to invade the attorney-client privilege on its face.

2014When communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not.” Shell Oil Co. v. Par Four P’ship, 638 So. 2d 1050, 1050 (Fla. 5th DCA 1994) (citations omitted); see also Ford Motor Co. v. Hall- Edwards, 997 So. 2d 1148, 1153 (Fla. 3d DCA 2008) (holding that “the attorney- client privilege . . . protects confidential communications between a lawyer and client, as well as third persons to whom disclosure is in furtherance of the rendition of legal services and those reasonably necessary for the transmission of the communicat

2025“The attorney-client privilege exists to protect not only the giving of professional advice, but also the giving of information to the lawyer to enable him to render sound and informed advice.” Hagans v. Gatorland Kubota, LLC/Sentry Ins., 45 So. 3d 73, 76 (Fla. 1st DCA 2010) (citing Upjohn Co. v. U.S., 449 U.S. 383, 390 (1981)).

2020The purpose of the privilege is to encourage broad communication between a lawyer and the client and thus promote the broader public interest in the proper administration of justice.” (citing Upjohn Co. v. United States, 449 U.S. 383 (1981)); see also R.L.R. v. State, 116 So. 3d 570 , 573 n.3 (Fla. 3d DCA 2013) (noting that the attorney-client privilege “is an interest traditionally deemed worthy of maximum legal protection”).

2022See First Union Nat’l Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 2001) (“Absent agreement otherwise, the trial judge should not examine written communications between attorney and client, unless the party seeking to establish the crime-fraud exception adduces competent evidence, apart from 5 We note that, in his briefing to this Court, Schneider seems to have abandoned the argument made below that the crime-fraud exception to the attorney-client privilege applies here. 8 the disputed documents, that would lead a reasonable person to believe that such an examination would reveal that the

2010“The attorney-client privilege is one the oldest confidential communications privilege known in the common law.” First Union Nat’l Bank v. Turney, 824 So.2d 172, 185 (Fla. 1st DCA 2002) (quoting Am.

2026These necessity arguments by Progressive seem to be an attempt to overcome the attorney-client privilege by way of rule 1.280(c)(4), but while a showing of need is required to overcome the work product privilege, "there is no exception . . . that allows the discovery of attorney- client privileged communications where the requesting party has demonstrated need and undue hardship." See Genovese, 74 So. 3d at 1068 . 6 Although Genovese addressed the attorney-client privilege in the context of the production of the insurer's claim file, contrary to Progressive's assertion, the right to assert the

2019Co., 74 So. 3d 1064, 1068 (Fla. 2011) ("Where a claim of privilege is asserted, the trial court should conduct an in-camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege.").

2022Failure to Conduct an In Camera Review For over thirty years, we have stated: “If a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure.” Id. (citing Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128 , 1128–29 (Fla. 4th DCA 1991)); see also RC/PB, Inc. v. Ritz- Carlton Hotel Co., L.L.C., 132 So. 3d 325, 327 (Fla. 4th DCA 2014) (finding an in camera inspection was warranted be

2019Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding it was error to order production of documents regarding communications with the condo association and its attorneys without an in camera inspection on the basis the privilege was waived by disclosure to the association’s community manager); Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected from discovery by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera revi

2015See Omega Consulting Grp., Inc. v. Templeton, 805 So.2d 1058, 1059 (Fla. 4th DCA 2002) (“Certiorari lies to review trial court orders compelling production of discovery claimed to be subject to the attorney-client privilege, since such disclosure presents the potential departure from the essential requirements of law that would cause material harm for which there is no adequate remedy on final appeal.” (citing Langston, 655 So.2d at 94 ; Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021, 1022 (Fla. 4th DCA 1998))); Snyder v. Value Rent-A-Car, 736 So.2d 780, 781 (Fla. 4th D

2011We note that just prior to our opinion being released, the Florida Supreme Court issued its opinion in Genovese v. Provident Life & Accident Insurance Co., - So.3d - (Fla. 2011), holding that “the attorney-client privilege is applicable in the first-party bad faith context.” Id. at-. 2 .

2013See Hoyas v. State, 456 So.2d 1225, 1228 (Fla. 3d DCA 1984) (finding that once the client offers testimony regarding the communication, the attorney-client privilege is waived).

2006See Hoyas, 456 So.2d at 1228 .

2002However, as the first district stated in Home Insurance Co. v. Advance Machine Co., 443 So.2d 165, 168 (Fla. 1st DCA 1983): Although it is the rule in Florida that a party who bases a claim on matters which would be privileged, the proof of which will necessitate the introduction of privileged matter into evidence, and then attempts to raise the privilege so as to thwart discovery, may be deemed to have waived that privilege, see Savino v. Luciano, 92 So.2d 817, 819 (Fla.1957), the general and we think controlling rule is that the attorney-client privilege is not "waived by bringing or defendi

1983Although it is the rule in Florida that a party who bases a claim on matters which would be privileged, the proof of which will necessitate the introduction of privileged matter into evidence, and then attempts to raise the privilege so as to thwart discovery, may be deemed to have waived that privilege, see Savino v. Luciano, 92 So.2d 817, 819 (Fla. 1957), the general and we think controlling rule is that the attorney-client privilege is not "waived by bringing or defending a suit." Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 35 (D.Md. 1974).

2026Section 90.502(4)(e), Florida Statutes (2022), provides that [t]here is no lawyer-client privilege under this section when . . . [a] communication is relevant to a matter of common interest between two or more clients . . . if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest. 6 110 So. 3d 973, 974 (Fla. 2d DCA 2013) ("A party claiming that documents sought by an opposing party are protected by the attorney- client privilege is entitled to have those documents reviewed in came

2026Corp., 269 So. 3d 623, 626 (Fla. 2d DCA 2019) (concluding that trial court erred by ordering production of documents without first conducting in camera review to determine whether attorney-client privilege applied); Patrowicz [v. Wolff, 110 So. 3d 973, 974 (Fla. 2d DCA 2013)] ("A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure.").

2022Servs., Inc. v. Feller, 163 So. 3d 1252, 1254 (Fla. 5th DCA 2015) (“[T]he trial court erred by finding that the attorney-client privilege was waived by counsel’s statement at a hearing.”); Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 508 (Fla. 2d DCA 2006) (“[A]ll personal privileges may be waived by the client.”); see generally, Charles W.

2020See, e.g., Sedgwick, 163 So. 3d at 1254 ("[T]he trial court erred by finding that the attorney- client privilege was waived by counsel's statement at a hearing.

2016“Although waiver of the attorney-client privilege and work-product privileges is not favored in Florida, the rule is mandatory and a waiver can be found by failure to file a privilege log.” Id. (quoting Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006)).

2007"Although waiver of the attorney-client privilege and work-product privileges is not favored in Florida, the rule is mandatory and a waiver can be found by failure to file a privilege log." Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006).

2015See H.A.W. v. State, 652 So.2d 948, 949 (Fla. 5th DCA 1995) (holding “[w]hen a psychotherapist is employed by counsel for a defendant to assist him in preparing a defense for his client and not to treat the defendant, the state may not depose the expert or call him as a witness; this witness is subject to the attorney-client privilege.”); see also Lovette v. State, 636 So.2d 1304, 1308 (Fla.1994) (“We hold ... that the state cannot elicit specific facts about a crime learned by a confidential expert through an examination of a defendant unless that defendant waives the attorney/client privileg

1995See also State v. Hamilton, 448 So.2d 1007 (Fla.1984) (when appointed counsel informs the court that he has reason to believe that his client is incompetent to stand trial or was insane at the time of the offense, the trial court must appoint an expert to examine the defendant in order to assist his attorney in the preparation of his defense; once this expert is appointed, all matters related to that expert are confidential and any inquiry into the communications between the expert and attorney would violate the attorney-client privilege).

2009Similarly, in Jenney v. Airdata Wiman, Inc., 846 So.2d 664 (Fla. 2d DCA 2003), the court held that where an objection was interposed in depositions as soon as the confidential nature of the communication became apparent, the attorney-client privilege was not waived.

2009See Cuillo v. Cuillo, 621 So.2d 460 (Fla. 4th DCA 1993); Jenney v. Airdata Wiman, Inc., 846 So.2d 664, 668 (Fla. 2d DCA 2003).

2022For sake of ease, the co- petitioners will be referred to together herein as “Arthur.” 2 See Coffey-Garcia v. S. Miami Hosp., Inc., 194 So. 3d 533, 536 (Fla. 3d DCA 2016) (recognizing an appellate court has certiorari jurisdiction to quash an order that requires a party to disclose communications protected by the attorney-client privilege); Holland v. Barfield, 35 So. 3d 953, 955 (Fla. 5th DCA 2010) (recognizing an appellate court has certiorari jurisdiction to quash an order that – without proof there is no less intrusive method of obtaining the information – permits the respondent to examine

2017See id. at 538-39 (finding that while the plaintiff could be compelled to reveal “the names of the attorneys whom she consulted with” in pursuing a medical malpractice claim, “the reasons why she sought out legal counsel and any subsequent counsel” was protected by the attorney-client privilege).

2026See Coates, 940 So. 2d at 508 ("A party does not waive the attorney-client privilege merely by bringing or defending a lawsuit.").

2022Servs., Inc. v. Feller, 163 So. 3d 1252, 1254 (Fla. 5th DCA 2015) (“[T]he trial court erred by finding that the attorney-client privilege was waived by counsel’s statement at a hearing.”); Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 508 (Fla. 2d DCA 2006) (“[A]ll personal privileges may be waived by the client.”); see generally, Charles W.

2022See First Union Nat’l Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 2001) (“Absent agreement otherwise, the trial judge should not examine written communications between attorney and client, unless the party seeking to establish the crime-fraud exception adduces competent evidence, apart from 5 We note that, in his briefing to this Court, Schneider seems to have abandoned the argument made below that the crime-fraud exception to the attorney-client privilege applies here. 8 the disputed documents, that would lead a reasonable person to believe that such an examination would reveal that the

2001The "crime-fraud exception to the attorney-client privilege... assure[s] that the `seal of secrecy,'... between lawyer and client does not extend to communications `made for the purpose of getting advice for the commission of a fraud' or crime." American Tobacco Co., 697 So.2d at 1253 (quoting United States v. Zolin, 491 U.S. 554, 563 , 109 S.Ct. 2619 , 105 L.Ed.2d 469 (1989)); See Anderson v. State, 297 So.2d 871, 875 (Fla. 2d DCA 1974) ("The attorney-client privilege cannot prevent the disclosure of communications made in contemplation of a crime or the perpetration of a fraud.").

2021See, e.g., Worley, 228 So. 3d at 25 (“[T]he question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney-client privilege.”).

2021Instead, this Court created new law by concluding “that the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney-client privilege.” Id. at 25 .

2015The more important point is that the [appellant] had already waived the privilege as a matter of law by making the assertion that her counsel had settled the case without authority._ Writing about this circumstance, the late Judge Letts said, “No court should countenance an announced settlement between counsel foEowed by escape therefrom, if one side arbitrarily reneges and then seals’ his counsel’s lips by invoking the attorney-client privilege.” Hamilton v. Hamilton Steel Corp., 409 So.2d 1111, 1114 (Fla. 4th DCA 1982).

2002Writing about this circumstance, the late Judge Letts said, “No court should countenance an announced settlement between counsel followed by escape therefrom, if one side arbitrarily reneges and then seals his counsel’s lips by invoking the attorney-client privilege.” Hamilton v. Hamilton Steel Corp., 409 So.2d 1111, 1114 (Fla. 4th DCA 1982).

2014Making the point clearly, the court said that “[tjhere simply is no basis upon which to distinguish between first- and third-party cases with regard to the rationale of the discov-erability of the claim file type material.” Id. at 1129 . 1 While Ruiz concerned work product, our Court implicitly recognized a shift in the landscape when we held in West Bend Mutual Insurance Co. v. Higgins, 9 So.3d 655, 658 (Fla. 5th DCA 2009), 2 that in the context of a first-party bad faith proceeding, Ruiz did not extend to materials protected by the attorney-client privilege, reasoning: Although the Florida S

2011Although the Florida Supreme Court receded from Kujawa in Ruiz, 899 So.2d at 1122 , we again emphasize that Ruiz did not address the attorney-client privilege.

2001In Fisher v. United States, 425 U.S. 391, 402-405 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976), the Court held that if a document in the hands of the client is unobtainable by subpoena, and the client transfers the document to his attorney for the purpose of obtaining legal advice, the document can not be obtained by subpoena from the attorney by reason of the attorney-client privilege.

2001In Fisher v. United States, 425 U.S. 391, 402-405 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976), the Court held that if a document in the hands of the client is unobtainable by subpoena, and the client transfers the document to his attorney for the purpose of obtaining legal advice, the document can not be obtained by subpoena from the attorney by reason of the attorney-client privilege.

2006In Kujawa , the trial court ordered production of files pertaining to the handling of an insurance claim without regard to the attorney-client privilege or work product. 541 So.2d at 1169 .

1993In affirming this court's Kujawa opinion, the supreme court stated that the district court was correct in concluding that an adversarial, not fiduciary, relationship existed between the parties and that the legislature in creating the bad faith cause of action did not evince an intent to abolish the attorney-client privilege. 541 So.2d at 1169 .

2017Tobacco Co. v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997) (quoting Haines v. Liggett Group, Inc., 975 F.2d 81, 90 (3d Cir. 1992)).

2009The purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” American Tobacco v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997) (quoting Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir.1992)).