Trust Account Wire Receipts Are Not Privileged

In Sweetapple, Broeker & Varkas, P.L. v. Simmon (3D14-1543), the Third District addressed whether trust account wire receipts showing transfers to Sweetapple, Broeker & Varkas, P.L. (“the Firm”) are protected by the attorney-client privilege. The court described the general facts as follows:

After obtaining two judgments against one of the Firm’s clients, the Judgment Creditor discovered that the client transferred money to the Firm. The Judgment Creditor subpoenaed the Firm requesting documents reflecting any payment of sums into and out of the Firm’s trust account for the benefit of its client.  

The trial court held an in camera inspection and ordered the law firm to produce the records. The Third District agreed and concluded that "because this financial information is not privileged in the hands of the client, it is not privileged in the hands of the attorney." Therefore, the judgment creditor prevailed. 

On a procedural note, the court dismissed the petition as opposed to denying it, stating:

Because the records are not privileged, the Firm has failed to demonstrate that production of the documents would constitute irreparable harm. We therefore dismiss the petition for lack of jurisdiction. Bd. of Trs. of Internal ImprovementTrust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012) (“A finding that the petitioning party has suffered an irreparable harm that cannot be remedied on direct appeal is a condition precedent to invoking a district court’s certiorari jurisdiction.”) (citation and internal quotations omitted). 

Judge Logue wrote the opinion and was joined by Chief Judge Shepherd and Judge Emas. 

Are Communications By A Government Employee With A Government AttorneyPrivileged?

In In re Grand Jury Subpoena, the Fourth Circuit reviewed an order from the district court “that: (1) certain emails sent by a government-employed lawyer were not protected by the attorney-client privilege, and (2) the attorney-client privilege does not exist between a government official and a government-employed lawyer in the context of a criminal investigation.”

The Fourth Circuit first held that the unidentified appellants failed to establish the government attorney was actually providing legal advice to the government employee in the emails at issue. Therefore, the emails were not privileged and that portion of the district court’s order was affirmed.

The Fourth Circuit vacated the second portion of the district court’s order as moot (for now). Having already resolved the privilege issue as to the specific emails presented, the court held resolution of the broader second issue did not present a justiciable issue. Therefore, any decision would be an improper advisory opinion.

The court did note that the broader and more interesting issue may be ripe for resolution in the future (“We note, however, that should the record be more fully developed through the course of the grand jury investigation such that a concrete dispute arises as to particular communications, justiciable claims may yet lie.”).

For what it’s worth, as discussed in a story by Politico, the Associated Press has identified the “confidential” government employee as the Governor of Virginia.

Litigation Client Privilege Applies When Defending Malicious Prosecution & Abuse of Process Claims

In Wolfe v. Foreman, et al (3D10-3055), the Third District addressed the applicability of the litigation client privilege when defending a lawsuit asserting claims for abuse of process and malicious prosecution. The court held:

Because the law is clear that the litigation privilege applies to abuse of process, we affirm the trial court’s order granting judgment on the pleadings in favor of the defendants below as to that cause of action. Although the law is not as clear whether the litigation privilege also applies to a cause of action for malicious prosecution, we: (1) conclude that it does; and (2) affirm the trial court’s order finding that the litigation privilege also applies to a cause of action for malicious prosecution.

The court provided an analysis of the relevant facts, which can be read in the opinion. However, the court also provided the elements of the causes of action, which could be useful to some, and copied below:

The elements of a cause of action for abuse of process under Florida law are: (1) an illegal, improper, or perverted use of process by the defendant; (2) an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) damages to the plaintiff as a result. Valdes v. GAB Robins N. Am. Inc., 924 So. 2d 862 (Fla. 3d DCA 2006).

***

The elements for a malicious prosecution cause of action are that a judicial proceeding: (1) was commenced against the plaintiff; (2) was instigated by the defendant; (3) ended in favor of the plaintiff; (4) was instigated with malice; (5) was commenced without probable cause; and (6) resulted in damage to the plaintiff. Valdes, 924 So. 2d at 866 n.1 (quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)).

Judge Rothenberg wrote the court's opinion and was jointed by Chief Judge Shepherd and Judge Cortinas. Chief Judge Shepherd wrote an opinion specially concurring in the majority opinion.

Litigation Privilege Does Not Extend To Comments On Website - Dismissal Of Defamation Suit Reversed

In Ball v. D’Lites Enterprises (4D09-4859), the Fourth District held that "that statements made on a party’s website are not protected by the litigation privilege." The court described the facts as follows:

According to the plaintiffs, they were induced to enter into these agreements by representations about the nutritional content, and low caloric values of the ice cream, and were told these “light” products could be sold to diabetics. D’Lites supplied the product for the ice cream, but the plaintiffs found that it was virtually impossible for them to meet the nutritional requirements promised to them using D’Lites goods. They requested that the defendants modify the formula but the defendants declined to do so. Without a product as promised, the plaintiffs sued the defendants for various causes of action over their agreement, including claims for breach of contract and fraud in the inducement.

***

After the plaintiffs filed suit against the defendants, the defendants placed warnings to the public on their website stating that plaintiffs had violated certain trademarks. A memorandum on the defendants’ website stated that the plaintiffs were selling products and labeling them as D’Lites when they actually were not. The defendants’ website stated that “you need to know the product they are passing off as D’Lites Emporium ice cream is in fact a hoax.”

***

The plaintiffs then filed an amended complaint alleging defamation by the defendants. The defendants moved to dismiss, claiming that the statements were protected by the litigation privilege which provides absolute immunity regarding any act in the course of a judicial proceeding, regardless of whether the act involved a defamatory statement or other tortious behavior, so long as the act had some relation to the proceeding...

The trial court agreed and dismissed the defamation count of the amended complaint.The Fourth District disagreed and held:

“Immunity for statements made during a judicial proceeding has a long legal history, as noted in” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994)…..The issue presented in this case is whether the statements by a party on its commercial website constituted a statement made in connection with judicial proceedings. We hold that it does not.

***

We analogize the publication of statements on the internet to calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media.

***

the website publication in this case was not made in connection with the judicial proceeding. It was not made in the proceedings itself, nor was it made to a participant connected to the proceeding such as a witness. Like statements to the newspapers or press conferences, these statements have no part in the judicial proceedings. Instead, they were made to the world at large through the website and accused the plaintiffs of fraud and perpetrating a hoax on the public. These statements were not “necessarily preliminary” to judicial proceedings, because unlike either Ange or Stewart the statements were not steps in the judicial process.

The judicial proceeding immunity should not be extended to such publications, because it does nothing to enhance policy behind the privilege which is to provide free and full disclosure of facts in a judicial proceeding. It is not communication directed to participants which must remain unhindered by fear of civil lawsuits. Instead, it most likely does just the opposite, and information relevant to lawsuits may be less likely to be shared for fear that it will be posted on the internet.

The website statements are not protected by absolute immunity given to statements made in judicial proceedings. Therefore, we reverse the partial final judgment and order the reinstatement of the plaintiffs’ defamation claim.

Order Allowing Deposition After Withdrawn Affidavit Quashed

In Urbanek v. Urbanek (4D10-3478), the Fourth District granted a petition for certiorari and quashed the trial court's order allowing the deposition of a person after that persons affidavit had been withdrawn from the case.  The petitioner had asserted the "psychotherapist-patient  privilege  to  prevent respondent(s)  from  deposing  his  psychologist  who  had previously furnished  the  court with  an affidavit."  The court stated that:

Petitioner subsequently withdrew the affidavit.  Respondent’s position is that the any privilege was waived and the waiver cannot be revoked.

We grant the petition and quash  the order.  We hold  that any  initial waiver  of  the privilege was  revoked when petitioner withdrew the affidavit..... Petitioner submitted the affidavit in response to an affidavit submitted by Gerald Urbanek in connection with issues which were, and remain,  collateral to the underlying indemnification claim.  Also, respondent has not demonstrated that the substance of the affidavit is tied to petitioner’s answer, affirmative defenses or counterclaim.

Fourth District Denies Petition Seeking to Prevent Post-Judgment Discovery Sought From Counsel

In Neiman v. Naseer, et al (4D10-2091), the Fourth District denied a petition for certiorari seeking to quash the trial court's order that had refused to grant protection from a subpoena, served on the appellant's attorneys, that "sought  information  about settlement  funds  paid  to  one of  the  judgment  debtors  in  an  unrelated lawsuit."  Review was sought of the trial court's non-final order.  The Fourth District first noted that the order was not reviewable "as a non-final order under Florida Rule of Appellate Procedure 9.130(a)(4)."  The court concluded:

Treating  the appeal as a petition  for writ of certiorari, we agree with the  circuit  court  that  the  information  sought was not  protected  by  the  attorney-client privilege.  The information was known  to  the other party to the settlement agreement in the unrelated lawsuit.  We also agree that “[w]hile  confidentiality  agreements  are  necessary  in  some  instances,  to facilitate  settlement,  they  may  not  be  subsequently  employed  by a litigant to . . . thwart an opponent’s discovery.”  Smith v. TIB Bank of the Keys, 687 So. 2d 895, 896  (Fla. 3d DCA 1997).  We reject the  judgment debtors’ other arguments without further comment.

Order Requiring Production From Non-Party Reversed For Entry Of Confidentiality Order

In Columbia Hospital (Palm Beaches) Limited Partnership v. Hasson (4D09-3988), the Fourth District reversed a trial court order requiring the production of documents by a non-party claimed to be privileged "to the extent that the trial court ordered production without first allowing the parties an opportunity to negotiate a confidentiality agreement."  The court stated:

The hospital also contends that the trial court departed from the essential requirements of the law in ordering production without balancing the interests....We conclude that Defendants sufficiently explained below why they needed the information: in order to dispute, as unreasonable, the amount of medical expenses that the plaintiff will seek to recover from them, if the hospital charges non-litigation patients a lower fee for the same medical services. A claimant for damages for bodily injuries has the burden of proving the reasonableness of his or her medical expenses.....The trial court’s findings, while brief, sufficed for this purpose.  However, the trial court also must take such protective measures as are required. § 90.506, Fla. Stat.

The court also included a footnote that stated:

As Defendants assert, a hospital’s cost to provide a service no longer bears much relationship to what it charges, but reimbursement rates from third party payors give hospitals an incentive to set their usual charges at an artificially high amount, from which discounts are negotiated; cost-shifting results in discriminatorily high charges to uninsured patients, in that every patient is billed at full charges, but only the uninsured are expected to pay those amounts; as a result, actual charges are not instructive on what is reasonable; instead, Defendants argue, a realistic amount is what hospitals are willing to accept.

Supreme Court Upholds Ban On Certain Lawyer Advice In Bankruptcy

The Supreme Court released its opinion today in Milavetz, Gallop & Milavetz, P. A. v. United States.  Justice Sotomayor wrote the opinion for the Court and stated:

Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system. Among the reform measures the Act implemented are anumber of provisions that regulate the conduct of “debt relief agenc[ies]”—i.e., professionals who provide bankruptcy assistance to consumer debtors. See 11 U. S. C. §§101(3), (12A). These consolidated cases present the threshold question whether attorneys are debt relief agencies when they provide qualifying services. Because we agree with the Court of Appeals that they are, we must also consider whether the Act’s provisions governing debt relief agencies’ advice to clients, §526(a)(4), and requiring them to make certain disclosures in their advertisements, §§528(a) and (b)(2), violate the First Amendment rights of attorneys. Concluding that the Court of Appeals construed §526(a)(4) too expansively, we reverse its judgment that the provision is unconstitutionally overbroad. Like the Court of Appeals, we uphold §528’s disclosure requirements as applied in these consolidated cases.

Articles can be found at the following links: Reuters; Wall Street Journal Law Blog; and the New York Times.

Review Of Illegally Obtained Evidence Justified The Disqualification Of Counsel

In Castellano v. Winthrop (5D09-2978), the Fifth District denied a petition for certiorari seeking to reverse a trial court's order disqualifying the petitioner's counsel.  The court described the facts as follows:

The disqualification was based on the Firm's receipt, review, and use of respondent, Marc Winthrop's ("the Father") USB flash drive that contained electronic files including, inter alia, attorney/client communications, client litigation notes, and attorney work product.

***

In February 2009, the Mother came into possession of a USB drive that belonged to the Father. It is not necessary to detail the manner in which the Father's USB drive came into the Mother's possession. It is sufficient to state that after the Mother's version of the events was rejected by the court, the trial court could properly find that the USB drive was illegally obtained by the Mother without the knowledge or consent of the Father.

In addition to a number of other things, the trial court entered an order disqualifying the petitioner's trial counsel.

While recognizing that disqualification of a party's chosen counsel is an extraordinary remedy that should be resorted to sparingly, disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party's counsel....Given the nature of the information obtained by the Firm from the USB drive, it cannot be reasonably disputed that an informational and tactical advantage was obtained by the Mother.

Finally, the court gave some advice to attorneys who might face similar issues:

For the benefit of other attorneys facing a similar dilemma, we note that the Florida Bar Commission on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue. If the client refuses to consent to disclosure, the attorney must withdraw from further representation.5 Fla. Bar Prof'l Ethics Comm., Formal Op. 07-1.

5- The attorney may also be required to advise his client to consult a criminal defense attorney.

Reversal Of Order Denying Protective Order Over Privileged Information "Interests Of Justice Require" It

In Nova Southeastern University, Inc. v. Jacobson (4D09-683), the Fourth District granted Nova's Petition for Certiorari and quashed the trial court's order requiring disclosure of a letter protected by the attorney client privilege.  The interests of justice required counsel for the plaintiff below to disclose the fact that they had the letter.  The court stated:

Jacobson, was an Associate Director at the University School Middle School of Nova....Jacobson was being deposed on February 13, 2008, when she testified that in June 2005 she was at the fax machine at the middle school receiving some papers on an insurance claim for her son. Mixed in with some insurance company papers was a letter from Nova’s law firm to the head master of the school, the human resources department and the director of the middle school. She read the letter, which stated that the university “did not have enough performance issues to fire me, and that it would have to be a business decision whether I was going to remain an employee of NSU.” Counsel for Nova said at the deposition that he was recording his objection to the letter as attorney-client privilege, noting that “it was obviously communicated accidentally.” No letter was produced at the time of the deposition.

***

Nova moved for a protective order in May 2008 to prevent Jacobson from referring to the letter, because it was protected by attorney-client privilege. At the time of the filing of the motion, Nova did not know that Jacobson had retained a copy of it....At the hearing, Nova filed affidavits from each of the persons to whom the letter was sent, indicating that they did not intend for third persons to see the communication. Further underscoring the letter’s confidentiality, counsel produced a cover sheet which had accompanied the faxed letter, which stated that the attached communication was protected by attorney-client privilege.

***

As we said in BNP Paribas v. Wynne, 967 So. 2d 1065, 1067 (Fla. 4th DCA 2007), “[t]h e attorney-client privilege is the oldest confidential communication at common law and . . . is ‘traditionally deemed worthy of maximum legal protection.’”...The privilege belongs to the client, see Neu v. Miami Herald Pub. Co., 462 So. 2d 821, 825 (Fla. 1985), and may be claimed by the client or the lawyer on behalf of the client.

***

Closer to these facts are those cases involving overheard conversations, where the client knew or should have known that the conversation was overheard by a third person....In such cases, the courts have held that where the communication is made in the presence of others, it does not evince an intent to keep the conversation confidential, and the privilege is lost....Nevertheless, the fact determination in the overheard conversation cases is similar to the first step of the Abamar/McGee inquiry regarding the reasonableness of the precautions to prevent inadvertent disclosure. Therefore, despite the factual difference, we apply the relevant circumstances test.

***

Where the party who inadvertently produced the documents objects or demands return of the documents as soon as the disclosure is discovered, the party has not unduly delayed seeking measures to rectify the inadvertent disclosure.....These cases show that it is the assertion of the privilege at the earliest time through objection or motion which is the important measure in evaluating efforts to rectify the disclosure. It is not the delay in securing hearing time. In failing to recognize that the timely assertion of an objection constituted an appropriate measure to rectify the inadvertent disclosure, the court departed from the essential requirements of law. Furthermore, Nova’s trial counsel did not know that Jacobson had a copy of the letter at the time the depositions proceeded. Nova’s attorney could not have moved to exclude what h e did not know was in possession of his opponent.

***

The overriding interests of justice support returning the letter to Nova, if it is determined that the attorney-client privilege was not waived by the method of its delivery by fax. Jacobson’s attorney clearly had to know that the letter was intended to be a confidential communication in that it provided legal analysis regarding the Nova/Jacobson employment relationship. The Rules of Professional Responsibility require that he notify the other attorney of this inadvertent disclosure. See Fla. R. Prof. Conduct 4-4.4(b) (“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”). Instead of following the rule, this attorney held onto the letter for years. The interests of justice require that the Rules of Professional Responsibility be honored. Because the trial court departed from the essential requirements of law in evaluating the relevance test factors for waiver of attorney-client privilege based upon inadvertent disclosure, we remand for the trial court to conduct a new hearing on the issue.

Order Requiring Production Of Materials Protected By Work Product Privilege Affirmed

In Paradise Pines Health Care Assoc., LLC v. Bruce, et al (1D09-961),  in a divided opinion, the First District affirmed the trial court's order requiring the production of material protected by the work product privilege. Chief Judge Hawkes wrote the majority opinion and was joined by Judge Kahn.  Judge Kahn also wrote a concurring opinion.  Judge Clark wrote a dissenting opinion.  The majority opinion stated:

Under Rule 1.280(b)(3) (2008), Florida Rules of Civil Procedure, there are two prongs that the Respondents must meet to overcome the Petitioner’s work product privilege: (1) a need for the document sought; and (2) an inability to obtain equivalent information without undue hardship....To determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the Respondents had no realistic way to independently procure the information and the Petitioner had the incident reports at their immediate disposal.

***

In the order, the trial court expressly stated the Respondents demonstrated a need for the reports; then, in the following sentence, explained that the subject of the incidents contained in the reports was deceased and “unable to confer [] about events surrounding any of the incidents.” This is an implicit finding of undue hardship on the part of the Respondents.

Because the trial court applied the proper test and balanced the factors, the First District refused to grant a writ a certiorari. The dissent concluded:

The order on appeal stated “[Petitioner] has also failed to demonstrate any undue hardship which it would suffer by virtue of producing the incident reports.” Hardship upon the party producing the records is irrelevant to the rule 1.280 (b)(3) analysis. The respondents were the party seeking production of the incident reports, not the petitioner.

No Right To Appeal Under Collateral Order Doctrine Of Order Requiring Production Of Privileged Information - Eleventh Circuit Affirmed

In Justice Sotomayor's first opinion on the United State Supreme Court, the Court affirmed a decision from the Eleventh Circuit Court of Appeals.  In Mohawk Industries, Inc. v. Carpenter, the Court concluded a party does not have the right to an interlocutory appeal under the collateral order doctrine of an order requiring the production of privileged information. The opinion began:

Section 1291 of the Judicial Code confers on federal courts of appeals jurisdiction to review “final decisions of the district courts.” 28 U. S. C. §1291. Although “final decisions” typically are ones that trigger the entry of judgment, they also include a small set of prejudgment orders that are “collateral to” the merits of an action and “too important” to be denied immediate review. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). In this case, petitioner Mohawk Industries, Inc., attempted to bring a collateral order appeal after the District Court ordered it to disclose certain confidential materials on the ground that Mohawk had waived the attorney-client privilege. The Court of Appeals dismissed the appeal for want of jurisdiction.

The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mecha-nisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

Fourth District Quashes Order Requiring Production Of Privileged Documents

In Alliant Insurance Services, Inc. v. Reimer Insurance Group (4D09-3594), the Fourth District granted certiorari and quashed a decision of the trial court requiring the production of allegedly privileged documents.

A trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari...

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...

Similarly, if attorney-client privilege is waived regarding a certain matter, the waiver is limited to communications on the same matter....If the parties disagree as to the scope of the privilege waiver, a trial court must delineate the scope of the waiver before it may compel discovery of information.

The court also included a footnote about the use of a motion for rehearing in the trial courts when dealing with a non-final order.  The court stated:

A motion for rehearing is not authorized from an interlocutory or non-final order. Wagner v. Bieley, Wagner & Assoc., Inc., 263 So. 2d 1, 3 (Fla. 1972). While such a motion does not toll the time for petitioning for certiorari relief, this does not mean that trial courts are precluded from considering rehearing.

Fourth District Reverses Discovery Order Based Upon Journalist's Privilege To Withhold Confidential Informant Information

In Thestreet.com, Inc. v. Carroll (4D09-2649), the Fourth District granted "the petition for writ of certiorari and quash the order denying petitioners’ motion and granting respondent’s motions. We remand the case with instructions to enter an order requiring the return of the documents identified in petitioners’ motion to compel return, striking the use of the documents for any purpose and barring respondent from any further use of, reference to, or reliance on, the privileged information."

The petitioners asserted they inadvertently produced two unredacted documents that revealed the names of a confidential informant.  The respondent/plaintiff refused to return the documents arguing the reporter was using the information as both a sword and a shield.  The court stated:

Certiorari lies to review these orders compelling production of documents and information claimed to be protected under the qualified journalist’s privilege in Florida...First, we find that the material and irreparable harm element of certiorari has been demonstrated by virtue of the privilege being asserted, such that this would be “cat out of the bag” irreparable harm...We also find that the trial court’s order departed from the essential requirements of law when it ordered the discovery notwithstanding petitioners’ assertion of the Florida journalist’s privilege.

***

We disagree with the trial court’s conclusion that petitioners asserted this privilege as both a sword and shield in this case because they did not assert any claims or pleadings seeking affirmative relief...Instead, the discovery in dispute related to an affirmative defense. Further, even if the sword and shield doctrine were to apply in this case, the proper remedy would be to dismiss or strike petitioners’ defenses and not to compel production of the very information claimed to be privileged.

Documents Maintain Privilege Status Even When Disclosed to Testifying Expert

In Mullins, D.M.D. v. Tompkins (1D09-1148), the First District granted certiorari and quashed the trial court's order requiring the production of documents that were provided to a testifying expert.

The documents in question were described by the court as: "Dr. Mullins’ counsel described the materials in controversy as letters from counsel (to Dr. Mullins and her malpractice insurer, whom he also represented) which included counsel’s evaluations of claims and defenses; and as e-mails and other correspondence from Dr. Mullins to him in which she explained in detail and commented on Ms. Tompkins’ care and treatment."

The court held that: "The principle of law at issue here is that a party does not automatically waive any privilege simply by furnishing protected or privileged material to the party’s own expert...Even when the expert is to testify, opposing parties may be unable to discover privileged material that is not being offered as evidence...

Even assuming that work product and privileged communications provided to an expert witness become discoverable if used as a basis for the expert’s opinion, there has been no such showing here.

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).

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."