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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Florida Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:

1.6:101      Model Rule Comparison

The Florida Rule, unlike MR 1.6, requires a lawyer to reveal information the lawyer reasonably believes necessary to prevent the client from committing a crime, or to prevent death or substantial bodily harm to another. This requirement applies even to past acts of the client that may result in the future death or substantial bodily harm of another. Comment, FL Rule 4-1.16. The Florida Rule permits a lawyer to reveal information to serve the client's interest, unless the client specifically requires nondisclosure, and permits a lawyer to reveal information to comply with the Rules of Professional Conduct. The Florida Rule permits a lawyer to exhaust all appellate remedies before complying with an order to reveal confidential information. In any instance where disclosure is mandated or permitted, the Florida Rule states that the lawyer may disclose no more information than is required to meet the requirements or accomplish the purposes of the rule.

1.6:102      Model Code Comparison

DR 4-101 distinguishes client "confidences" from client "secrets," and permits the lawyer to reveal such confidences or secrets with the informed consent of the client, or when permitted under the disciplinary rules or required by law or court order, or to prevent the client from committing a crime, or to establish or collect his fee or defend himself against an accusation of wrongful conduct. Unlike FL Rule 4-1.6, DR 4-101 does not require the lawyer to reveal information to prevent the client from committing a crime or prevent a death or substantial bodily harm to another. DR 4-101 does not permit a lawyer to exhaust appellate remedies before complying with a tribunal's disclosure order.

1.6:200   Professional Duty of Confidentiality

Primary Florida References: FL Rule 4-1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 59-66, Wolfram §§ 6.1, 6.7

The attorney-client privilege is addressed in the Rules of Professional Conduct as well as in the Rules of Evidence. The first issue to be addressed, therefore, is which body of law will control. The Comment to Rule 4-1.6, Rules of Professional Conduct provides in pertinent part:

The principle of confidentiality is given effect in 2 related bodies of law, the attorney-client privilege (which includes the word product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.

Comment, FL Rule 4-1.6. Thus, it appears that in a court proceeding, the rule of evidence takes precedence over the ethical rule. However, the Comment also provides:

The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See rules 4-2.2, 4-2.3, 4-3.3, and 4-4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes rule 4-1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession.

Comment, FL Rule 4-1.6. Despite the Comment's admonition that it should be presumed that Rule 4-1.6 controls, the Fourth DCA has stated:

Much has been made in this case about the Rules of Professional Conduct and what may or may not be disclosed under the ethical standards covered by those rules, but we believe the question of admissibility of evidence is covered by the Florida Evidence Code, section 90.502, Florida Statutes (1988). There is a provision in the ethical rules governing lawyers that permits a lawyer to reveal a confidence if the lawyer believes it is necessary to prevent a client from committing a crime or to prevent a death, but there is no similar provision in the evidence code. The ethical rules do not modify the evidence code.

Kleinfeld v. State, 568 So. 2d 937, 939 (Fla. 4th DCA 1990).

1.6:210      Definition of Protected Information

Interpreting former DR 4-101, the court in Buntrock v. Buntrock, 419 So. 2d 402 (Fla. 4th DCA 1982), stated that the Code of Professional Responsibility "protects more than confidential communications, it protects the confidences and secrets of a client. This protection is broader than the evidentiary attorney-client privilege, and applies even though the same information is discoverable from other sources." Id. at 403 (citation omitted). Even in criminal cases, information learned by an attorney concerning the client's past acts must be considered confidential under FL Rule 4-1.6 and ordinarily may not be revealed without the client's consent. FL Eth. Op. 90-6 (Oct. 1, 1991)(criminal defense counsel who learns that client is proceeding under a false name may not inform the court of this fact).

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

The ethical obligation to guard the confidences and secrets of a client is broader than, and independent of, the attorney-client privilege. In re Duque, 134 B.R. 679, 688 (S.D. Fla. 1991)(attorneys have fulfilled their ethical obligation by "vigorously invoking" privilege against subpoena said to be invasive of confidentiality requirement). FL Rule 4-1.6 imposes a duty to maintain confidentiality of client information, and imposes upon attorneys a "correlative duty to refrain from inducing others to disclose confidential matters." Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F. Supp. 651, 654 (M.D. Fla. 1992)(attorney disqualified in light of evidence that attorney paid opposing party's former employee to disclose confidential matters as a "trial consultant"; appearance of impropriety arose from inference that attorney induced another to breach a confidence, and from indications that the former employee acting as "trial consultant" was in reality a fact witness). But see Browning v. AT&T Paradyne, 838 F. Supp. 1564 (M.D. Fla. 1993)(where former employee was a plaintiff in the case, it was necessary, and hence not a result of improper inducement, for former employee to disclose pertinent information to his attorney).

In Florida Bar v. Wolding, 579 So. 2d 736 (Fla. 1991), the court held that failing to lock law office files and using a conference room with acoustical problems that allegedly permitted outside persons to hear conversations therein did not violate FL Rule 4-1.6. In Wolding, the attorney had shared offices and a telephone system with a title company. No actual disclosures of confidential information occurred. There was no evidence that title company employees actually went into law office files without permission. The instances in which the "acoustical problems" led to outside persons hearing conversations in the conference room involved shouting. Finally, at the time of the court's decision, the attorney no longer shared space with another business. Based on all these factors, the court held that the attorney had not violated FL Rule 4-1.6.

In Florida Bar v. Brennan, 377 So. 2d 1181 (Fla. 1979), an attorney was reprimanded for revealing client confidences. The attorney represented a defendant in a robbery case. The attorney had an oral agreement with the prosecutor whereby the client would not receive a sentence exceeding ten years, and the attorney at a pre-sentence hearing would provide evidence concerning use of a firearm during the robbery. The attorney played a tape recording of an interview with the victim of the robbery for his client and recorded the client's impressions and reactions regarding the alleged use of a firearm, which reactions were subjected to a psychological stress evaluation test. The attorney did not advise the client that he intended to provide the court the result of the stress evaluation test. Following the test, the attorney wrote a letter to the judge stating that his client had stressed at every question regarding use of a weapon in the crime. He also indicated a belief that the client was not candid with him. The court imposed a ten-year sentence, later reduced to five years at the request of the attorney. These actions by the attorney were found to violate former DR 4-101(B)(1) and 4-101(B)(2).

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

In Florida Bar v. Niles, 644 So. 2d 504 (Fla. 1994), a criminal defense attorney was found to have violated FL Rule 4-1.6(a) by accepting a $5,000 fee from the producers of the television show "A Current Affair" for an interview with his client, who had been convicted of first degree murder. The interview, which took place while the client's appeal was pending, included admissions from the client and excerpts from a videotape showing the client shooting and killing the victim. The court found that the attorney lied to prison officials about the identity of the television reporter he brought with him to the prison, lied by denying he had received a $5,000 fee for the interview, failed to advise his client of the interview before arriving at the prison with the reporter and thus obtained the interview of his client without her informed consent, and revealed client information without the consent of his client. The attorney received only a one-year suspension, based on his lack of prior discipline involving moral turpitude.

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

In the case of representation of co-clients, a lawyer may have conflicting duties. A presumption exists against any other provision superseding the duty of confidentiality. Comment, FL Rule 4-1.6. Any reasonable doubt about whether information is confidential should be resolved in favor of maintaining client confidentiality. See FL Eth. Op. 92-5 (Dec. 7, 1993) (attorney served with summons for filing incomplete IRS form must make a good faith attempt to determine whether attorney-client privilege applies before providing requested information).

The Florida Bar addressed the issue of confidentiality in a joint representation in Fla. Bar Op 95-4 (May 30, 1997), in which the issue was whether an attorney who represented both a husband and wife in estate planning could reveal to wife the confidences of the husband. The Florida Bar decided that the lawyer cannot reveal to the wife information provided in confidence by husband without husband’s consent. The Bar noted the conflict between FL Rule 4-1.6, which requires a lawyer to maintain in confidence all information relating to the representation of a client, and FL Rule 4-1.4, which requires a lawyer to communicate to a client information that is relevant to the representation. The Bar concluded that under the given facts, the lawyer’s duty of confidentiality must take precedence and that the lawyer may not disclose the information to the wife.

In that opinion, the Florida Bar specifically rejected the argument, espoused by some other jurisdictions and commentators, that no confidentiality exists within the context of a joint representation. Id. The Bar rejected the argument that joint clients have no expectation of confidentiality within the joint representation. Id. The Bar also rejected the argument that the law governing the evidentiary attorney-client privilege should set the standard for the lawyer’s ethical duties in a joint representation.

FL Rule 4-1.6 prohibits revelation of “information relating to representation of a client,” and is not limited to information subject to the evidentiary attorney-client privilege under § 90.502, Fla. Stat. (1997). The ethical privilege is broader than the evidentiary privilege. Buntrock v. Buntrock, 419 So. 2d 402, 403 (Fla. 4th DCA 1982). The evidentiary privilege includes an exception based on the joint representation of multiple clients. § 90.502(4)(e), Fla. Stat. (1997), but the ethical rule does not contain any such exception. Fla. Bar Op. 95-4.

The duty of confidentiality under FL Rule 4-1.6, of course, continues after the lawyer-client relationship is terminated. “[T]he lawyer is enjoined for all time, except when released by law, from disclosing matters revealed by reason of the confidential relationship with the lawyer’s client.” Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Auth., 593 So. 2d 1219, 1222 (Fla. 1st DCA 1992); see also Comment, FL Rule 4-1.6 (“The duty of confidentiality continues after the client-lawyer relationship has terminated.”).

1.6:250      Information Imparted in Lawyer Counseling Programs

[The discussion of this topic has not yet been written.]

1.6:260      Information Learned Prior to Becoming a Lawyer

[The discussion of this topic has not yet been written.]

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary Florida References: FL Rule 4-1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 59-66, Wolfram §§ 6.4, 6.7

Information may be revealed if the client consents after disclosure. FL Rule 4-1.6(a). Additionally, a lawyer must reveal information necessary to prevent the client from committing a crime; or to prevent a death or substantial bodily harm to another. FL Rule 4-1.6(b). A lawyer may, but is not required to reveal information: (1) to serve the client's interest; (2) to establish a claim or defense in a dispute with the client; (3) to establish a defense to a criminal charge or civil claim based on conduct in which the client was involved; (4) to respond to allegations in any proceeding involving the lawyer's representation of the client; and (5) to comply with the Rules. FL Rule 4-1.6(c).

1.6:310      Disclosure to Advance Client Interests or with Client Consent

[The discussion of this topic has not yet been written.]

1.6:320      Disclosure When Required by Law or Court Order

In Neu v. Miami Herald Publ’g Co., 462 So. 2d 821 (Fla. 1985), the court addressed the apparent conflict between § 286.011, Fla. Stat., popularly known as the “Sunshine Law,” and attorney-client confidentiality. The Sunshine Law provides generally that all meetings of public bodies at which official acts are to be taken must be open to the public. At issue in Neu was whether a city council could meet privately with its attorney to discuss settlement of pending litigation to which the city was a party. The court held that the Sunshine Law required such meetings to be open to the public. There was no violation of the rule against disclosure of client confidences because an attorney may divulge communications with his client when required by law, and because there are no confidential communications to protect when the communications occur at a public meeting. The attorney’s right to invoke the attorney-client privilege is derivative of the client’s right to that privilege, and here the client had no such right, being subject to the plenary authority of the Legislature to require public meetings. Subsequent to Neu, the Legislature enacted § 286.011(8), Fla. Stat., providing a limited exemption to the Sunshine Law for private meetings between public entities and their attorneys to discuss pending litigation, provided that: (1) at a public meeting, the attorney requests advice concerning the litigation; (2) the subject matter of the meeting is confined to settlement negotiations or strategy sessions related to litigation expenditures; (3) the entire session is recorded by a court reporter, whose transcription of the meeting must be filed with the entity’s clerk; (4) the entity give reasonable notice of the time and date of the meeting and the names of the persons who will attend, and the meeting begins in public session; and (5) the transcript of the meeting is made part of the public record upon conclusion of the litigation.

A lawyer served with a summons for filing an incomplete IRS form must make a good faith attempt to determine whether the attorney-client privilege applies before providing the requested information. FL Eth. Op. 92-5 (Dec. 7, 1993).

1.6:330      Disclosure in Lawyer's Self-Defense

In Adelman v. Adelman, 561 So. 2d 671 (Fla. 3d DCA 1990), the court ruled that a law firm that represented the ex-husband on appeal in a dissolution case was properly disqualified after the ex-wife sued her trial attorney for malpractice and the attorney retained the ex-husband's firm. The court held that by suing her ex-lawyer for malpractice, the ex-wife had not waived her attorney-client privilege with this lawyer as to the entire world, as such waiver was limited solely to the legal malpractice action. The ex-lawyer would be permitted to reveal confidential information relating to his representation of the ex-wife only to the extent necessary to defend himself against the malpractice claim. In this situation, where the ex-lawyer had hired the ex-husband's law firm to represent him, the court found no solution to the dilemma of how to balance the interests of confidentiality with the ex-lawyer's right to make full disclosure to his own lawyer, and so upheld the order disqualifying the law firm from representing the ex-husband.

The Filing of a malpractice action waives the privilege only as to the client's communication with the defendant/attorney concerning the subject matter of the malpractice action. The defendant/attorney may reveal confidential information only to the extent necessary to defend against the malpractice action. Ferrari v. Vining, 744 So. 2d 480 (Fla. 3d DCA 1999). There is no waiver as to the client's consultation with other attorneys concerning the malpractice action. Id.

The Comment provides:

If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal, or professional disciplinary proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person; for example, a person claiming to have been defrauded by the lawyer and client acting together.

Comment, FL Rule 4-1.6.

1.6:340      Disclosure in Fee Dispute

An attorney may report a delinquent former client to a credit reporting service if confidential information unrelated to the collection of the debt is not disclosed and if the debt is undisputed but has not been paid. An attorney may not report a current client to a credit reporting service. Fla. Bar Op. 90-2 (Mar. 1, 1991).

1.6:350      Disclosure to Prevent a Crime

In United States v. Del Carpio-Cotrina, 733 F. Supp. 95 (S.D. Fla. 1990), the court addressed the issue of an attorney's responsibility to disclose that his client had jumped bond and would not appear at trial. After entering his appearance on behalf of a criminal defendant, the attorney repeatedly attempted to contact the client. Finally, the attorney reached the client's wife, who informed the attorney that the client had left their residence with a suitcase and that she did not know where he had gone. Claiming a scheduling conflict, the lawyer obtained a later trial date without informing the court of the client's disappearance. At a hearing, the attorney argued that he was never certain that his client would not appear, and therefore under the attorney-client privilege and FL Rule 4-1.6, he had no duty to notify the court of his client's disappearance. In analyzing the situation, the court stated that a lawyer's duty to disclose future crimes or fraud by the client depends on the lawyer's state of knowledge, that "actual knowledge" is required, and that actual knowledge means at least a "firm factual basis" for believing that the client will actually carry out his criminal intent. Applying this standard to the facts of the case, the court found that the attorney had a firm factual basis for believing the client had jumped bond and did not intend to appear at trial. Even if the lawyer's claimed scheduling conflict was legitimate, the attorney could not seek an extension of time to appear for trial when he had a firm factual basis for believing his client would not appear. The court imposed no sanctions on the attorney, in light of the uncertain state of the law.

But see FL Eth. Op. 90-1 (July 15, 1990), in which the Bar treats the issue of bail jumping by distinguishing the attorney's responsibilities at the time of the required court appearance, and counsel's ethical obligations prior to the required court appearance. The Bar advises that, prior to the date of the court appearance, counsel is required to inform the court only where counsel knows "with reasonable certainty" that the client's avoidance of the court's authority is a "willful and, for all practical purposes, an irreversible fact." In Florida Bar v. Calvo, 630 So. 2d 548 (Fla. 1993), the court held that attorney-client confidentiality ends when the attorney knows that the client is engaging in a crime or fraud. In Calvo, the attorney was counsel to persons involved in the sale of federally regulated securities. Under federal regulations, the client was required to sell a minimum number of shares within 150 days of the date of the prospectus. Failure to do so would require refunds of all monies paid by purchasers. When it became apparent that the minimum number would not be sold by the deadline, the attorney either knew of or participated in obtaining very short term "flash loans" for exorbitant fees, to create the appearance that the minimum number of shares was being sold. The net result was that the corporation was capitalized at less than 15% of the required amount. Also, prior to the closing date, a principal involved in the offer was indicted for mail fraud, information that the attorney and his client had a duty to disclose to potential investors. No disclosures were made. The closing actually occurred past the deadline, without the proper filings of notice or permission of the governing authorities, which the attorney knew or should have known was required by law. In his defense, the attorney argued that, because the misconduct was originated by his client, he was required to maintain confidentiality. The court found that the rule of confidentiality comes to an end when an attorney knows the client is engaged in fraud or crime, and that an experienced securities lawyer understood or should have understood the nature of the client's actions. The court held it irrelevant whether the client was subsequently charged with a crime, finding that this fact alone does not excuse attorneys from honoring their obligations to the public at large. The attorney was disbarred, due to the aggravating factor of the great potential for harm to the public at large created by the attorney's participation in securities fraud.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

There are no Florida cases or ethics opinions on this topic.

1.6:370      Disclosure to Prevent Financial Loss

There are no Florida cases or ethics opinions on this topic.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

In Dean v. Dean, 607 So. 2d 494 (Fla. 4th DCA 1992), an attorney was hired to return stolen property. The victim moved to compel the attorney to reveal the name of the client. The court held that FL Rule 4-1.6 bars such disclosure under the circumstances of the case. The court held that the focus should not be on what the lawyer did but on what the client intended. It was clear that the client engaged the lawyer on the condition that his identity remain confidential. The matter involved a crime that had already been committed, not a future act that might be a crime, and the privilege against self-incrimination would be jeopardized if the attorney were required to disclose the client's identity. Accord, Anderson v. State, 297 So. 2d 871 (Fla. 2d DCA 1974)(attorney could not be compelled to reveal name of client who returned stolen property through the attorney, where mere revelation of the name could expose the client to prosecution for a crime previously committed and for which the person has consulted the attorney).

1.6:390      Confidentiality and Conflict of Interest

[The discussion of this topic has not yet been written.]

1.6:395      Relationship with Other Rules

A lawyer may have conflicting duties keep a client informed about the status of a matter and comply with reasonable requests for information, under Rule 4-1.4(a), and to maintain confidentiality of another client under Rule 4-1.6. As to which duty controls, the comment to the rule provides some guidance: “Whether another provision of law supersedes rule 4-1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such supersession.” Comment, FL Rule 4-1.6. Any reasonable doubt about whether information is confidential should be resolved in favor of maintaining client confidentiality. See FL Eth. Op. 92-5 (Dec. 7, 1993) (attorney served with summons for filing incomplete IRS form must make a good faith attempt to determine whether attorney-client privilege applies before providing requested information).

In FL Eth. Op. 95-4 (May 30, 1997) the question presented was whether an attorney who represented both husband and wife in estate planning could reveal to wife the confidences of the husband. The opinion contains a succinct analysis of the dilemma therein:

A lawyer is ethically obligated to maintain in confidence all information relating to the representation of a client. Rule 4-1.6. A lawyer, however, also has a duty to communicate to a client information that is relevant to the representation. Rule 4-1.4. These duties of communication and confidentiality harmoniously coexist in most situations. In the situation presented, however, Lawyer’s duty of communication to Wife appears to conflict with Lawyer’s duty of confidentiality to Husband. Thus, the key question for our decision is: Which duty must give way? We conclude that, under the facts presented, Lawyer’s duty of confidentiality must take precedence (emphasis added). Consequently, if Husband fails to disclose (or give Lawyer permission to disclose) the subject information to Wife, Lawyer is not ethically required to disclose the information to Wife and does not have discretion to reveal the information. To the contrary, Lawyer’s ethical obligation of confidentiality to Husband prohibits Lawyer from disclosing the information to Wife.

The Florida Bar specifically rejected the argument, espoused by some other jurisdictions and commentators, that no confidentiality exists within the context of a joint representation:

It has been suggested that, in a joint representation, a lawyer who receives information from the “communicating client” that is relevant to the interests of the non-communicating client may disclose the information to the latter, even over the communicating client’s objections and even where disclosure would be damaging to the communicating client. The committee is of the opinion that disclosure is not permissible and therefore rejects this “no-confidentiality” provision.

FL Eth. Op. 95-4 (May 30, 1997). The Bar rejected the argument that joint clients have no expectation of confidentiality within the joint representation. Id. The Bar also rejected the argument that the law governing the evidentiary attorney-client privilege should set the standard for the lawyer’s ethical duties in a joint representation:

The ethical duty of confidentiality assures a client that, throughout the course of the representation and beyond, the lawyer ordinarily may not voluntarily reveal information relating to the representation to anyone else without the client’s consent. In contrast, the evidentiary privilege becomes relevant only after legal proceedings have begun. The privilege is a limited exception to the general principle that, in formal legal proceedings, the legal system and society should have all relevant information available as part of the search for truth. Thus, there are different purposes underlying the concepts of confidentiality and privilege. The committee is of the opinion that the law of privilege does not, and should not, set the ethical standard of lawyer-client confidentiality.

Id. (citations omitted). This reasoning is in accord with other authority that the broad ethical duty to maintain client confidences must be distinguished from the more narrow evidentiary attorney-client privilege. Rule 4-1.6 prohibits revelation of “information relating to representation of a client,” and is not limited to information subject to the evidentiary attorney-client privilege under section 90.502, Florida Statutes (1997). Rule 4-1.6, unlike the evidentiary privilege, does not include any exception from the ethical duty of confidentiality based on the prior joint representation of multiple clients. See § 90.502(4)(e), Fla. Stat. (1997). In distinguishing the rule of confidentiality from the evidentiary attorney-client privilege, the official Comment to Rule 4-1.6 recognizes the broader scope of “information” protected by the rule:

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or by law.

Comment, FL Rule 4-1.6 (emphasis added). That the lawyer has obtained or may obtain the same information from other sources, or even that the information is a matter of public record, is irrelevant and does not relieve the lawyer from the duty of confidentiality. See Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Auth., 593 So. 2d 1219, 1222 (Fla. 1st DCA 1992); see also Buntrock v. Buntrock, 419 So. 2d 402, 403 (Fla. 4th DCA 1982) (“This protection is broader than the evidentiary attorney-client privilege, and applies even though the same information is discoverable from other sources.”).

Rule 4-8.3, which requires reporting the misconduct of another lawyer "does not require disclosure of information otherwise protected by Rule 4-1.6." FL Rule 4-8.3(c).

1.6:400   Attorney-Client Privilege

Primary Florida References: FL Rule 4-1.6, Fla. Stat. § 90.502
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:301, ALI-LGL §§ 68-85, Wolfram §§ 6.3-6.5

The attorney-client privilege is governed by section 90.502, Florida Statutes (1998) which provides that “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” § 90.502, Fla. Stat. (1998). The burden of establishing entitlement to the privilege is on the person claiming the privilege. Southern Bell Tele. & Tele. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994).

The attorney-client privilege arises if:

(1)   the asserted holder of the privilege is or sought to become a client;

(2)   the person to whom the communication was made (a) is a member of the bar of a court, or his subordination and (b) in connection with this communication is acting as a lawyer;

(3)   the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (I) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Cabanas v. Ford, Armenteros, Manucy, Inc., 727 So. 2d 1100, 1101-02 (Fla. 3d DCA 1999). The test for determining whether an attorney-client relationship exists is a subjective one, hinging on the client's belief that he is seeking legal advice. Bartholomew v. Bartholomew, 611 So. 2d 85, 86 (Fla. 2d DCA 1992). But the client's belief must be reasonable. Id.

“The attorney-client privilege arises in the context of a relationship having great significance for the protection of fundamental personal rights. For example, the ability to speak freely to one’s attorney helps to preserve rights protected by the fifth amendment privilege against self-incrimination and the sixth amendment right to legal representation.” Brookings v. State, 495 So. 2d 135, 139 (Fla. 1986) (quoting Mills v. State, 476 So. 2d 172-76 (Fla. 1985), overruled on other grounds by State v. Rodriquez, 500 So. 2d 120 (Fla.1986)). “By encouraging full disclosure, a client is able to receive fully informed legal advice without the fear that his statements may later be used against him.” Id.

Orders compelling disclosure of attorney-client privileged communications are reviewable by petition for certiorari. The Haskell Corp. v. Georgia Pac. Corp., 684 So. 2d 297, 298 (Fla. 5th DCA 1996).

1.6:410      Privileged Communications

Communications are privileged if they were “made in the rendition of legal services to the client” and were not intended to be disclosed to anyone other than “[t]hose to whom disclosure is in furtherance of the rendition of legal services to the client” or “[t]hose reasonably necessary for the transmission of the communication.” §90.502(1)(c) & (2), Fla. Stat. (1998). While the communication is privileged, the underlying facts are discoverable. Southern Bell Tele. & Tele. v. Deason, 632 So. 2d 1377, 1387 (Fla. 1994).

An unpublished will is protected by the attorney-client privilege during the testator’s lifetime. Compton v. West Volusia Hosp. Auth., 727 So. 2d 379, 382 (Fla. 5th DCA 1999).

There is no lawyer-client privilege under this section when:

(a)    The services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.

(b)   A communication is relevant to an issue between parties who claim through the same deceased client.

(c) A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.

(d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning execution or attestation of the document.

(e) A communication is relevant to a matter of common interest between two or more clients, or their successors in interest, 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.

§ 90.502(4), Fla. Stat. (2000).

1.6:420      Privileged Persons

A fee is not required for the formation of an attorney-client relationship. Florida Bar v. King, 664 So. 2d 925, 927 (Fla. 1997). "If a fee were required to form an attorney-client relationship, a lawyer could never perform work pro bono for a client." Id.

"Whether a person who consults a lawyer is a 'client' depends on the subjective intent of the person seeking the consultation, rather than what the lawyer does." Jones v. Beverly Health & Rehab. Servs., 68 F. Supp. 2d 1304, 1309 (N.D. Fla. 1999). "The focus . . . is on the perspective of the person seeking out the lawyer, not on what the lawyer does after the consultation." Dean v. Dean, 607 So. 2d 494 (Fla. 4th DCA 1992).

A mother's communications to a lawyer were privileged where the mother was "acting as an agent for her son [who was imprisoned] for the purpose of securing legal representation for him." Gerheiser v. Stephens, 712 So. 2d 1252, 1254 (Fla. 4th DCA 1998).

The Florida Rules of Evidence provide a special privilege for communications between a person seeking services from the Department of Revenue under the child support enforcement program and the attorney representing the department:

Such communications shall not be disclosed to anyone other than the agency except as provided for in this section. Such disclosures shall be protected as if there were an attorney-client relationship between the attorney for the agency and the person who seeks services from the department.

§ 90.502(5), Fla. Stat. (2000).

1.6:430      Communications "Made in Confidence"

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1.6:440      Communications from Lawyer to Client

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1.6:450      Client Identity, Whereabouts, and Fee Arrangements

The identity of a client is not ordinarily protected by the attorney-client privilege. There is no privilege for the fact of consultation or the identity of the client, including such identifying information as the client’s address. Greenberg, Traurig, Hoffman, Lippoff, Rosen & Quentel, P.A. v. Bolton, 706 So. 2d 97, 98 (Fla. 3d DCA 1998); Suarez v. Hillcrest Dev., Inc., 742 So. 2d 423, 425 (Fla. 3d DCA 1999). There is an exception, however, “where the mere identity of the person may expose him to prosecution for criminal acts previously committed and for which the person has consulted the attorney.” Dean v. Dean, 607 So. 2d 494, 498 (Fla. 4th DCA 1992). This is referred to as the “last-link” exception because the identity of the client is the last link in the chain of evidence needed for conviction of a crime. Corry v. Meggs, 498 So. 2d 508, 511 (Fla. 1st DCA 1986) (applying last-link exception to protect the identity of third party payor of client’s fees). The last-link exception may protect more than just the identity of the client and the party paying the attorney fees. Del Carmen Calzon v. Capital Bank, 689 So. 2d 279, 280 (Fla. 3d DCA 1995) (applying last-link exception to protect discovery of documents relating to representation).

1.6:460      Legal Assistance as Object of Communication

"[N]ot all confidential communications between an attorney and others are protected under the attorney-client privilege. The privilege protects only those confidential communications which are between an attorney and a 'client.'" State v. Rabin, 495 So. 2d 257, 260 (Fla. 3d DCA 1986). "If a communication with a lawyer is not made with him in his professional capacity, no privilege attaches. . . . Thus, where a lawyer is engaged to advise a person as to business matters as opposed to legal matters, or when he is employed to act simply as an agent to perform some non-legal activity for a client the authorities uniformly hold there is no privilege." Skorman v. Hovnanian, Inc., 382 So. 2d 1376, 1377 (Fla. 4th DCA 1980). A "client" is "any person, public officer, corporation, association, or other organization or entity, either public or private, who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer." § 90.502(1)(b), Fla. Stat. (2000). "[T]he primary focus is on the intent of the person claiming the privilege." Id. It does not matter whether the person actually hires the attorney. Id. In the Rabin case, a criminal defendant’s former wife met with the defendant's attorney. The attorney told her that the conversation would be kept confidential. However, the purpose of the meeting was to enable the attorney to gather information about the defendant’s case, not to provide legal services to the ex-wife. The ex-wife was not a "client." Therefore, the conversation was not protected by the attorney client privilege. Id. at 258, 260.

An attorney-client relationship is established by proving that the client consulted the attorney seeking legal advice. It is not necessary that the attorney represent the client in court or a legal proceeding. Dean v. Dean, 607 So. 2d 494, 499 (Fla. 4th DCA 1992). Nor is payment of a fee required to establish an attorney-client relationship. Id. at 500; see also Florida Bar v. King, 664 So. 2d 925, 927 (Fla. 1995) (“A fee is not necessary to form an attorney-client relationship.”). A mother’s conversation with an attorney she consulted, but did not hire, to represent her son, was privileged because she was “acting as an agent for her son for the purpose of securing legal representation for him.” Gerheiser v. Stephens, 712 So. 2d 1252, 1254 (Fla. 4th DCA 1998).

1.6:470      Privilege for Organizational Clients

The attorney-client privilege applies when the client is a corporation. § 90.502(1)(b), Fla. Stat. (1998); Tail of the Pup, Inc. v. Webb, 528 So. 2d 506, 506-07 (Fla. 2d DCA 1988). The corporation’s management has the authority to exercise the privilege and when “control of a corporation passes to new management, the authority to assert and waive the lawyer-client privilege passes as well.” Id. at 507.

The Florida Supreme Court has established the following test for determining whether a corporation’s communications are protected by the attorney-client privilege:

(1)   the communication would not have been made but for the contemplation of legal services;

(2)   the employee making the communication did so at the direction of a corporate superior;

(3)   the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;

(4)   the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;

(5)   the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Southern Bell Tele. & Tele. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994). The court created this test by combining the tests established in Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d per curiam by an equally divided court, 400 U.S. 348 (1971) and Diversified Indus., Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977).

In Doe v. Archdiocese of the Catholic Church, 721 So. 2d 428 (Fla. 3d DCA 1998), the court refused to disturb the trial court’s finding that the testimony of an employee who gave information to the media was privileged. The court found that the trial court could have found as a factual matter that the information was gathered in preparation for litigation and that the limited statements to the media did not waive the privilege. Id. at 429.

1.6:475      Privilege for Governmental Clients

In Neu v. Miami Herald Publ’g Co., 462 So. 2d 821 (Fla. 1985), the court addressed the apparent conflict between section 286.011, Florida Statutes, popularly known as the “Sunshine Law,” and attorney-client confidentiality. The Sunshine Law provides generally that all meetings of public bodies at which official acts are to be taken must be open to the public. At issue in Neu was whether a city council could meet privately with its attorney to discuss settlement of pending litigation to which the city was a party. The court held that the Sunshine Law required such meetings to be open to the public. There was no violation of the rule against disclosure of client confidences because an attorney may divulge communications with his client when required by law, and because there are no confidential communications to protect when the communications occur at a public meeting. The attorney’s right to invoke the attorney-client privilege is derivative of the client’s right to that privilege, and here the client had no such right, being subject to the plenary authority of the Legislature to require public meetings. The court declined to address the political question of the effect this interpretation of the Sunshine Law would have on the political process in Florida. See also Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987) (attorney-client privilege could not provide a basis for a county to refuse to produce closed litigation files under the Florida Public Records Act, § 119.07, Fla. Stat.).

Subsequent to Neu, the Legislature enacted section 286.011(8), Florida Statutes, providing a limited exemption to the Sunshine Law for private meetings between public entities and their attorneys to discuss pending litigation, provided that: (1) at a public meeting, the attorney requests advice concerning the litigation; (2) the subject matter of the meeting is confined to settlement negotiations or strategy sessions related to litigation expenditures; (3) the entire session is recorded by a court reporter, whose transcription of the meeting must be filed with the entity’s clerk; (4) the entity give reasonable notice of the time and date of the meeting and the names of the persons who will attend, and the meeting begins in public session; and (5) the transcript of the meeting is made part of the public record upon conclusion of the litigation.

In School Bd. v. Florida Publ’g Co., 670 So. 2d 99 (Fla. 1st DCA 1996), the court held that this limited exception does not apply to meetings at which persons other than the governmental entity and its attorney are present. Here, staff and consultants attended the meeting. See also Op. Fl. Atty. Gen. 95-06 (1995)(consultant may not attend a strategy session to provide technical support during a closed meeting to discuss litigation strategy or settlement negotiations pursuant to § 286.011(8), Fla. Stat.); Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998) (attendance of City Clerk and Deputy City Clerk at closed meeting improper; also holding that closed meeting was improper because “[w]hile there is no bright-line rule as to when advice becomes decisive action,” discussions went beyond “settlement negotiations and strategy sessions related to litigation expenditures.”).

The Florida Rules of Evidence provide:

A discussion of activity that is not a meeting for purposes of s. 286.011 shall not be construed to waive the attorney-client privilege established in this section. This shall not be construed to constitute an exemption to either s. 119.07 or s. 286.011.

§ 90.502(6), Fla. Stat. (2000).

1.6:480      Privilege of Co-Clients

Section 90.502 provides that there is no attorney-client privilege when "[a] communication is relevant to a matter of common interest between two or more clients, or their successors in interest, 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." § 90.502, Fla. Stat. (2000).

A cooperation clause in an insurance policy does not waive the attorney-client privilege where the insured and insurer are not in a fiduciary relationship, such as in an action by an insured against an insurer for bad faith. Eastern Air Lines, Inc. v. United States Aviation Underwriters, Inc., 716 So. 2d 340, 343 (Fla. 3d DCA 1998).

1.6:490      Common-Interest Arrangements

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1.6:495      Duration of Attorney-Client Privilege

The duty of confidentiality under Rule 4-1.6 continues after the attorney-client relationship is terminated. "[T]he lawyer is enjoined for all time, except when released by law, from disclosing matters revealed by reason of the confidential relationship with the lawyer's client." Kenn Air Corp. v. Gainesville-Alachua County Regional Airport, 593 So. 2d 1219, 1222 (Fla. 1st DCA 1992) (citing T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268 (S.D. N.Y. 1953); see also Comment, FL Rule 4-1.6 ("The duty of confidentiality continues after the client-lawyer relationship has terminated.").

1.6:500   Waiver of Attorney-Client Privilege

Primary Florida References: FL Rule 4-1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:401, ALI-LGL §§ 78-80, Wolfram § 6.4

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

"It is black letter law that once the privilege is waived, and the horse out of the barn, it cannot be reinvoked." Hamilton v. Hamilton Steel Corp., 409 So. 2d 1111, 1114 (Fla. 4th DCA 1982). However, an initial failure to assert the privilege does not constitute a waiver as long as the privileged information has not been disclosed. Liberty Mut. Ins. Co. v. Lease Am., Inc., 735 So. 2d 560 (Fla. 4th DCA 1999).

1.6:520      Waiver by Subsequent Disclosure

An attorney who inadvertently receives from an adversary documents that are protected by the attorney-client privilege “is ethically obligated to promptly notify the sender of the attorney’s receipt of the documents. It is then up to the sender to take any further action.” FL Eth. Op. 93-3 (Feb. 1, 1994). The Ethics Committee noted that “[w]hether the disclosure was inadvertent, and whether inadvertent disclosure impliedly waives the attorney-client privilege or work-product privilege, are questions of fact and law that are beyond the scope of an ethics opinion.” Id.

In Abamar Housing & Dev., Inc. v. Lisa Daly Lady Décor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1997), the Third DCA discussed different tests used by courts to determine whether the attorney-client has been waived. The court adopted the “relevant circumstances test” which requires weighing of the following factors:

(1)   The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production;

(2)   the number of inadvertent disclosures;

(3)   the extent of the disclosure;

(4)   any delay and measures taken to rectify the disclosures; and

(5)   whether the overriding interests of justice would be served by relieving a party of its error.

Id. at 279 (quoting United States v. Pepper’s Steel & Alloys, Inc., 742 F. Supp. 641, 643 (S.D. Fla. 1990)). In determining that the privilege had not been waived the court considered that a lawyer and paralegal had spent two days reviewing documents to be produced; that the lawyers acted promptly to request return of the privileged documents; and that out of the 100,000 documents produced only 23 privileged documents were inadvertently produced. Id.

The privilege is not waived by the mere fact that the client testifies to facts that were the subject of consultation with a lawyer because it is the communication that is privilege, not the facts. Brookings v. State, 495 So. 2d 135, 139 (Fla. 1986). “Waiver imports the intentional relinquishment of a known right.” Prieto v. Union Am. Ins. Co., 673 So. 2d 521, 522 (Fla. 3d DCA 1996) (no waiver where client, speaking through interpreter, blurted out statements before interpreter could translate lawyer’s instructions to client not to respond).

The privilege is not waived by the fact that the client’s lawyer attempts to negotiate immunity with the state. Brookings, 495 So. 2d at 140. The disclosure of a single document does not waive the privilege as to all related documents. Old Stone Bank v. Farris, 647 So. 2d 916, 917 (Fla. 4th DCA 1994) The court in Old Stone held that there was no waiver of all the documents because the disclosed document did not discuss all the details found in the other documents that were protected by the attorney-client privilege. Id.

Communications that occur between a lawyer and client during a break in deposition are protected. The Haskell Co. v. Georgia Pac. Corp., 684 So. 2d 297, 298 (Fla. 5th DCA 1996). If the deponent’s testimony changes after consultation with the lawyer, the fact of the consultation may be brought out, but the substance of the communication is privileged. Id.

1.6:530      Waiver by Putting Assistance or Communication in Issue

In a suit involving a real estate transaction, the client disclosed certain communications with his attorney. The attorney-client privilege was waived as to that particular transaction, but not as to "communications made during any other aspect of the lengthy attorney-client relationship." Procacci v. Seitlin, 497 So. 2d 969, 969 (Fla. 3d DCA 1986).

1.6:600   Exceptions to Attorney-Client Privilege

Primary Florida References: FL Rule 4-1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 81-84, Wolfram §§ 6.4

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1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

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1.6:620      Exception for Client Crime or Fraud

"The culpable client, as well as the innocent one is generally entitled to confidential communications with an attorney." First Union Nat’l Bank v. Whitener, 715 So. 2d 979, 982 (Fla. 5th DCA 1998). However, section 90.502 provides that an exception to the attorney-client privilege exists where "the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime of fraud." § 90.502(4)(a), Fla. Stat. (2000). A distinction is made between communications involving past crimes and communications involving future crimes. If the communication involves a crime to be committed in the future, there is no attorney-client privilege. However, the communication remains privileged if it involves a past crime. Id.

A party seeking to invoke the fraud exception cannot merely allege fraud, but must produce prima facie evidence that the client "affirmatively sought the advice of counsel to procure a fraud." Robichaud v. Kennedy, 711 So. 2d 186, 188 (Fla. 2d DCA 1998). "Expansion of this exception to permit the disclosure of attorney-client communications based upon a mere assertion of a fraudulent design . . . would virtually eliminate the attorney-client privilege in any suit where there was any allegation of fraud or misrepresentation." Id.; see also Florida Mining & Materials v. Continental Cas. Co., 556 So. 2d 518, 519 (Fla. 2d DCA 1990).

[T]he party opposing the privilege on the crime-fraud exception has the initial burden of producing evidence which, if unexplained, would be prima facie proof of the existence of the exception. The burden of persuasion then shifts to the party asserting the privilege to give a reasonable explanation of the conduct or communication. If the court accepts the explanation as sufficient to rebut the evidence presented by the party opposing the privilege, then the privilege remains. However, if after considering and weighing the explanation the court does not accept it, then a prima facie case exists as to the exception, and the privilege is lost. Thus, the trial court must consider the evidence and argument rebutting the existence of the crime-fraud exception and must weigh its sufficiency against the case made by the proponent of the exception.

American Tobacco Co. v. State, 697 So. 2d 1249, 1256 (Fla. 4th DCA 1997). In that case, the court found that the privilege did not exist because there was "evidence that the defendants utilized their attorneys in carrying out their misrepresentations and concealment to keep secret research and other conduct related to the true health dangers of smoking." Id. at 1257.

Rule 4-1.6 requires a lawyer to reveal information reasonably believed to be necessary “to prevent a client from committing a crime.” FL Rule 4-1.6. This ethical rule must be distinguished from the evidentiary rule in section 90.502. Even if a lawyer believes that no attorney-client privilege exists under section 90.502(4)(a), Rule 4-1.6 nevertheless prohibits the attorney from disclosing client confidences except where necessary to prevent a crime from occurring. Florida Bar v. Lange, 711 So. 2d 518, 520 n.2 (Fla. 1998). In Lange, the lawyer revealed a client’s confession to murder, not to prevent commission of a future crime, but to demonstrate to the court a possible conflict. The court held that the lawyer’s disclosure of the client confidences under such circumstances violated Rule 4-1.6.

1.6:630      Exception for Lawyer Self-Protection

The Florida rules of evidence have no explicit exception for a claim by a third party against the lawyer for conduct involving the client, as in the ethical privilege. Courts in several states have recognized a "self-defense" exception to the attorney-client privilege. First Fed. Sav. & Loan v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557, 566 (S.D. N.Y. 1986) (citing cases).

1.6:640      Exception for Fiduciary-Lawyer Communications

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1.6:650      Exception for Organizational Fiduciaries

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1.6:660      Invoking the Privilege and Its Exceptions

The privilege may be invoked by:

(a) The client.

(b) A guardian or conservator of the client.

(c) The personal representative of a deceased client.

(d) A successor, assignee, trustee in dissolution, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence.

§ 90.502(3), (a)-(d), Fla. Stat. (2000). The privilege may also be invoked by the lawyer, "but only on behalf of the client." § 90.502(3)(e), Fla. Stat. (2000).

1.6:700   Lawyer Work-Product Immunity

Primary Florida References: FL Rule 4-1.6, Fla. Stat. § 90.502, 286.011(8)
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 91:2201, ALI-LGL §§ 87-93, Wolfram § 6.6

1.6:710      Work-Product Immunity

“Pursuant to Florida Rule of Civil Procedure 1.2809(b)(3), materials prepared in anticipation of litigation by or for a party or its representative are protected from discovery, unless the party seeking discovery has need of the material and is unable to obtain the substantial equivalent without undue hardship.” Southern Bell Tele. & Tele. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994).

“[E]mployees’ statements which were made directly to counsel” are protected by the attorney/client privilege. “Statements made to security personnel . . . are not protected by the privilege.” “Counsel’s summaries of the employees’ statements, whether the statements were communicated to counsel, to security, or to any other personnel, are protected as work product.” Id. at 1386.

Counsel’s decision to share employee statements with managers in human resources department who had a “need to know” does not strip the information of its privilege. “Counsel had a duty to render legal services to the company, and in turn, the company has a right to internal business use of privileged documents generated by its own company employees. Thus, these statements remain privileged.” Id.

"Florida courts have repeatedly and consistently held that [oral statements taken by attorneys from witnesses] are nondisclosable work product." Horning-Keating v. State, 777 So. 2d 438 (Fla. 5th DCA 2001).

“[O]ur system of advocacy mandates that each side should be able to use its sources of investigation without fear of having to disclose all to opponents.” Carnival Corp. v. Romero, 710 So. 2d 690, 694 (Fla. 5th DCA 1998) (citing Winn-Dixie Stores, Inc. v. Nakutis, 435 So. 2d 307 (Fla. 5th DCA 1983)).

1.6:720      Ordinary Work Product

"Fact work product traditionally protects that information which relates to the case and is gathered in anticipation of litigation." Southern Bell Tele. & Tele. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994) (citing State v. Rabin, 495 So. 2d 257 (Fla. 3d DCA 1986)). "Whereas fact work product is subject to discovery upon a showing of 'need' and 'undue hardship,' opinion work product generally remains protected from disclosure." Id.

1.6:730      Opinion Work Product

"Opinion work product consists primarily of the attorney's mental impressions, conclusions, opinions, and theories." Southern Bell Tele. & Tele. Co. v. Deason, 632 So. 2d 1377, 1384 (Fla. 1994). "Whereas fact work product is subject to discovery upon a showing of 'need' and 'undue hardship,' opinion work product generally remains protected from disclosure." Id.

1.6:740      Invoking Work-Product Immunity and Its Exceptions

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1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

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1.6:760      Waiver of Work-Product Immunity by Use in Litigation

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1.6:770      Exception for Crime or Fraud

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