Wednesday, May 27, 2009

Testifying in Subsequent Proceeding About Attorney Client Communications Waives Privilege in Subsequent Action

In S & I Investments v. Payless Flea Market, Inc. (4D08-3478), the Fourth District held that the petitioner had waived the attorney client privilege.

After defending petitioners in a legal proceeding, counsel in the original proceeding filed a lawsuit in federal court for unpaid legal fees. Petitioners defended the lawsuit for attorneys fees and gave a deposition at which there were no privilege objections made.

The circuit court held that petitioners had waived privilege.

"An order improperly compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari."

Where a client sues her attorney for malpractice and voluntarily discloses her communications with the attorney, the client waives the attorney-client privilege as to those subjects disclosed... A client may voluntarily disclose confidential communications through testimony...Here, the client testified at the deposition and admits that she did not assert any claim of privilege at the deposition. She voluntarily gave testimony in a contested proceeding, recorded by both a videographer as well as a court reporter. She waived the privilege. 'Usually waiver in one proceeding is waiver in all proceedings.'


To the extent that the communications at petitioner’s deposition were relevant to the breach of duty between the lawyer and client, the communications were not protected by the privilege. § 90.502(4)(c), Fla. Stat. By testifying without objection in the deposition, petitioner waived any remaining attorney-client privilege.


The Fourth District also addressed the bankruptcy filing by one of the petitioners. The court held: "Petitioners filed a Notice of Filing Suggestion of Bankruptcy under Chapter 11 in this court on October 31, 2008, advising that an involuntary petition was filed against S & I. Although we acknowledge that the case is automatically stayed as to S & I, no stay is in effect as to petitioner Richmond."


Post a Comment