Posted by Nydia Streets of Streets Law in Florida Divorce
What is the attorney-client privilege in Florida? This is the privilege a client holds to keep communications between the client and his or her lawyer confidential. The lawyer cannot be compelled to say what the client told the lawyer and vice versa, with few exceptions. How does this privilege come up in the context of Florida family law cases? Most often it is seen in discovery disputes.
In the case Akerman LLP v. Cohen, 4D22-553 (Fla. 4th DCA November 9, 2022), two brothers sought divorce separately from their spouses who also happened to be sisters. The brothers had the same attorney and the wives had the same attorney in their respective divorce cases. The wives subpoenaed a law firm which represented the brothers in their business dealings, and the law firm asserted the attorney-client privilege in response to the subpoena. After hearings, the trial court ultimately entered an order compelling production of the disputed items and denying assertions of attorney-client privilege. The law firm and the brothers appealed.
The wives argued that at one hearing, the attorney representing the brothers and their business entities did not assert the attorney-client privilege in response to the subpoena, and therefore the privilege was waived. The appellate court rejected this argument, holding “We agree with petitioners that the wives’ contention that the ICD Entities waived the attorney-client privilege by consent based on the conduct of either Seth, attorney Miller, or both, ignores that neither Seth nor attorney Miller had the authority to waive the privilege on behalf of the ICD Entities. As the trial court correctly noted multiple times in the proceedings, the privilege belongs to and protects the client. See § 90.502(2), Fla. Stat. (2021) (‘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.’). If the privilege belongs to and protects the client, then a fortiori it is only the client who can waive the privilege. [. . .] Thus, attorney Miller could not waive the ICD Entities’ privilege without the express consent of the ICD Entities.”
The appellate court also found it was error for the trial court to fail to hold an in camera inspection of the documents asserted to be privileged. It held “For over thirty years, we have stated: “‘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.’ Id. (citing Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So. 2d 1128, 1128–29 (Fla. 4th DCA 1991)).”
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