The Attorney-Client Privilege
“The attorney-client privilege is the oldest confidential communication at common law and … is ‘traditionally deemed worthy of maximum legal protection.’” BNP Paribas v. Wynne, 967 So. 2d 1065, 1067 (Fla. 4th DCA 2007) (quotation omitted). “The attorney-client privilege applies to confidential communications made in the rendition of legal services to the client.” S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1380 (Fla. 1994). “Generally, private conversations between attorneys and their clients are protected by privilege.” Tundidor v. State, 221 So. 3d 587, 602 (Fla. 2017).
“The attorney-client privilege is widely recognized and applies to all confidential communications between a client and its attorney ‘made in the rendition of legal services,’ unless the communication falls within a statutory exception to the privilege.” Butler, Pappas, Weihmuller, LLP v. Coral Reef of Key Biscayne Developers, Inc., 873 So. 2d 339, 341 (Fla. 3d DCA 2003) (quoting Fla. Stat. § 90.502(2)). See also, Hagans v. Gatorland Kubota, LLC, 45 So. 3d 73, 77 (Fla. 1st DCA 2010) (“The privilege also prevents disclosure of an attorney’s notes of a meeting with the client.”).
Purpose of the Attorney-Client Privilege
The purpose of the privilege is to encourage clients to make full disclosure to their attorneys. “The purpose of the attorney-client privilege is to ‘encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.’” Worley v. Cent. Fla. YMCA, 228 So. 3d 18, 25 (Fla. 2017) (quotation omitted). Stated slightly differently, “[t]he purpose of the attorney-client privilege is to encourage the free and full disclosure by clients of information to attorneys so that adequate legal representation can be supplied.” Dean v. Dean, 607 So. 2d 494, 495 (Fla. 4th DCA 1992).
“The attorney-client privilege plays an essential role in the adversary system.” Hagans, 45 So. 3d at 76 (Fla. 1st DCA 2010). “The ability of client and attorney to communicate with one another in confidence is central to our system of administering justice.” Id. (quotation omitted). “The attorney-client privilege exists to protect not only the giving of professional advice, but also the giving of information to the lawyer to enable him to render sound and informed advice.” Id. “If the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected.” Id. (citation omitted).
“An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Hagans, 45 So. 3d at 76. “A client’s confidential communication of facts to his attorney is protected by attorney-client privilege, even if the facts are discoverable by other means.” Id. “The attorney-client privilege is not subject to any balancing test and, unlike matters protected by work-product privilege, cannot be discovered by a showing of need, undue hardship, or some other competing interest.” Id.
Codification of the Attorney-Client Privilege
The attorney-client privilege is codified in Fla. Stat. § 90.502, which provides, “[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.” Fla. Stat. § 90.502(2).
For purposes of the privilege, “client” is defined as, “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.” Fla. Stat. § 90.502(1)(b). “A communication between lawyer and client is ‘confidential’ if it is not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication.” Fla. Stat. § 90.502(1)(c).
The attorney-client privilege “may be claimed 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. (e) The lawyer, but only on behalf of the client. The lawyer’s authority to claim the privilege is presumed in the absence of contrary evidence.” Fla. Stat. § 90.502(3).
Exceptions to the Attorney-Client Privilege
Fla. Stat. § 90.502 also provides several exceptions to the attorney-client privilege. There is no privilege when:
- 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;
- A communication is relevant to an issue between parties who claim through the same deceased client;
- 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;
- 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 the execution or attestation of the document; or
- 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.
Fla. Stat. § 90.502(4).
One of the most litigated exceptions to the privilege is known as the “crime-fraud exception.” “[T]he privilege does not apply if the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.’” BNP Paribas, 967 So. 2d at 1067 (quoting Fla. Stat. § 90.502(4)(a)). “Under the statute, it is immaterial whether the lawyer knows that the client intends to commit a crime or perpetrate a fraud, so long as the client has the intention to do so sometime in the future.” Id. (quotation omitted). “The dispositive question is whether the attorney-client communications are part of the client’s effort to commit a crime or perpetrate a fraud.” Id. (quotation omitted).
The attorney-client privilege can also be waived. For example, “if the communication is voluntarily made in the presence of a third-party, the [attorney-client] privilege will typically be lost.” Tundidor v. State, 221 So. 3d 587, 602 (Fla. 2017). “However, communications between codefendants and their counsel regarding issues of their joint defense are still protected by privilege.” Id. “Generally, a party waives the attorney-client privilege if the party ‘injects the very issue which requires testimony from his attorney.’” Blake v. Batmasian, No. 15-cv-81222, 2017 U.S. Dist. LEXIS 166208, at *30 (S.D. Fla. Oct. 5, 2017) (quotation omitted).
Additionally, the privilege does not apply in certain situations. For example, “[i]t is not however the purpose of the attorney-client privilege to act as a vehicle by which individuals can use an attorney to insulate themselves from disclosure relative to activities which do not involve legal representation.” Dean, 607 So. 2d at 495. Similarly, “[t]he privilege protects only communications to and from a lawyer; it does not protect facts known by the client independent of any communication with the lawyer, even if the client later tells the fact to the lawyer: ‘the communication between the attorney and client is privileged, but the underlying facts are discoverable.’” Coffey-Garcia v. S. Miami Hosp., Inc., 194 So. 3d 533, 537 (Fla. 3d DCA 2016) (quotation omitted).
Burden of Proving the Attorney-Client Privilege
“The burden of establishing the existence of the attorney-client privilege, and thus the existence of a confidential communication, rests on the party asserting the privilege.” Coffey-Garcia, 194 So. 3d at 537. “This burden can be met by describing ‘the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged[,] . . . will enable other parties to assess the applicability of the privilege.’” Id. (quoting Fla. R. Civ. P. 1.280(b)(6)). “In some cases, however, the communication will appear to be privileged on its face.” Id. “In such cases, the party seeking disclosure of the communication bears the burden of proving that it is not privileged.” Id.