Wednesday, June 3, 2009

Conversation with Attorney Creates Attorney Client Relationship When Client Reasonably Believes it is Seeking Legal Advice

In Powell v. Solowsky (3D09-864), the Third District granted cert and remanded for the circuit court to conduct an evidentiary hearing. The issue related to whether a person who discusses a legal issue with a friend, who is an attorney, can protect the conversation based upon attorney client privilege. The court could not determine whether the client had intended to create a relationship based upon the facts and, therefore, an evidentiary hearing was required.

The Third District stated:

According to Professor Ehrhardt, "Whether the person consulting a lawyer is a client depends primarily on whether the person believes that the consultation with the lawyer is as a client and the client has manifested an intention to seek professional legal advice." Charles W. Ehrhardt, Florida Evidence § 502.2 (2009). "[T]he lawyer cannot be consulted as a friend or business advisor; the person must be consulted as a lawyer. A communication is not privileged simply because one party to the communication happens to be a lawyer." Id. (footnote omitted). The client’s belief that she is consulting a lawyer in that capacity must be reasonable. Valliere v. Florida Elections Comm’n, 989 So. 2d 1242, 1243 (Fla. 4th DCA 2008).


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