Time and time again, my
father is always giving me some ‘secret’ information on something and he always
prefaces it, in his thick Greek accent, with, “this is attorney client
confidentiality.” I gave up years ago trying to explain how it wasn’t, partly
because he didn’t care and partly because I wanted to hear this morsel of
information. But it comes up often in my daily interactions, either as a result
of my practice or in day-to-day life, that questions about confidentiality and
privilege regarding attorney-client communications are raised.
Briefly the facts
surrounding the case involve the parents of a young girl, tragically diagnosed
with cerebral palsy, who filed a medical malpractice lawsuit against the
hospitals, clinics, and doctors that were involved in the birth. The hospitals,
clinics, and doctors questioned the mother in a deposition about the lawyers
she consulted regarding the case, and she indicated that her current lawyer
wasn’t her first. She then refused to answer any other questions about the
prior lawyers, and cited the attorney-client privilege as her reason to refuse.
Those hospitals,
clinics, and doctors asked, and the trial court ordered, that the mother answer
all questions regarding when she first sought counsel, the names of the
attorneys she consulted with, and the reasons why she first sought out all of the
different lawyers.
On the appeal of the
trial court’s order, Third District Court of Appeal gave a thorough explanation
regarding confidentiality and privilege related to attorney-client
communications.
To break it down, in
Florida what you know as the “attorney-client privilege” or “confidentiality” actually
originates from two sources: from the Florida Statutes (the laws of Florida) and
from the Rules Regulating the Florida Bar (the Florida Bar licenses and
regulates attorneys in the state).
Within the Florida
Statutes is the Florida Evidence Code, which governs what is and isn’t
evidence, and what can and cannot be allowed into a proceeding as evidence.
These types of proceedings would be judicial or administrative proceedings,
such as depositions, trials, traffic hearings, and the like. Section 90.502
creates what is called the “attorney-client privilege,” and that allows the
client of an attorney to refuse to disclose and to prevent anyone else from
disclosing the contents of the confidential communications made during the
legal services.
What that means is, a
client in a judicial or administrative proceeding (like a deposition in a
lawsuit) can refuse to answer questions about the contents of the discussion they
had with their lawyer. That client can also prevent the lawyer from disclosing
those contents of the communication, as well as the lawyer’s staff or anyone
the lawyer hires to help him in handling the legal services for the client
(like a private investigator).
The Rules Regulating
the Florida Bar, in the confidentiality sense, are a little different in that
they govern disclosure outside of the judicial or administrative arena. This is
termed “the rule of client-lawyer confidentiality” (found at 4-1.6), and is
directed more towards the attorney since the Rules regulate lawyers. The Rule
lays out when a lawyer can and cannot reveal confidential information related
to representation of the client. There are only two instances when a lawyer must
reveal confidential information regardless of the client’s consent: 1) when the
lawyer reasonably believes it's necessary to prevent the client from committing
a crime, and 2) to prevent the death or substantial bodily harm of another.
As a criminal defense
attorney, I often get asked by people if my clients ever admit to having broken
the law and do I have to tell the judge or police if they admitted it. Whether
my clients do or don’t tell me if they’ve broken the law or committed the
crime, this Rule prevents me and every other attorney from telling anyone if
they admitted to breaking the law. It would be different, however, if perhaps a
client told me they were on their way to a bank to rob it, and I reasonably
believed the client.
Back to the “rule of
client-lawyer confidentiality,” it generally applies outside of judicial or
administrative proceedings. This could be during telephone conversations
between opposing attorneys or when an attorney is in front of the TV news man
giving an interview regarding the case.
Going back to the case
before the Third District Court of Appeal, they had to decide whether the
questions the hospitals, clinics, and doctors were asking would violate the
attorney-client privilege during a deposition in a legal/judicial proceeding.
The Court ruled that
the privilege protects the communications between the client and the lawyer,
which we now know. But the Court further stated that any independent facts the
client learned is not protected under the privilege.
This is quite the
nuance to grapple with so let me give you an example to illustrate. Let’s say
Client A sees a dog with purple hair running across the street (and let’s
further pretend this purple dog has SOMETHING to do with a lawsuit). Client A
then goes to her lawyer and tells the lawyer that she saw a dog with purple
hair running across the street.
Now in a deposition
during the lawsuit, if Client A is asked “what did you tell your attorney,” she
can refuse to answer the question and invoke the attorney-client privilege. But
if Client A is asked “what color hair did the dog running across the street
have,” she cannot refuse to answer and invoke the attorney-client privilege
because she told that to her lawyer. She learned that the dog had purple hair
independently from talking with her lawyer, so there is no confidentiality to
the fact that the dog had purple hair.
Now if her attorney
told her that the dog is owned by the owner of the Miami Dolphins, she could
refuse to answer the question “do you know who the owner of the dog is” and
invoke the attorney-client privilege because she didn’t independently learn the
fact outside of the confidential communication.
Back again to the case
before the Third District Court of Appeal, it was decided that questions as to
the names of the attorneys and the dates the mother consulted with them was not
confidential and could be asked. The reasoning, again, is that there is nothing
in that information related to the contents of the communications.
The Court drew the
line, however, regarding any questions asking why the mother sought out legal
counsel and any subsequent lawyers. The reasoning here is that the reasons for
seeking out an attorney and subsequent attorneys will lead to questions as to
what was told to you by the first attorney that caused you to go to the second
attorney, and third. Was some specific piece of advice given that triggered you
to see another attorney? This line of questioning results in the contents of
the confidential communications being revealed, and that would violate a
client’s “attorney-client privilege.”
As you see, protections
have been put in place to protect you, the client, with regards as to your
communications with your lawyer. Those secret morsels of information my father
would give me (assuming he’s my client and I’m his attorney, which he always
does) wouldn’t necessarily invoke the “attorney-client privilege” in some
judicial proceeding because he got it from someone or somewhere else. But I
would be prevented by the client-attorney confidentiality rule of the Rules
Regulating the Florida Bar from revealing those secret morsels of information
he gave me to anyone else (like my mom, perhaps?) without his informed consent.
And so his secrets are
safe with me, just as with any of my actual clients, whether in business or in
the criminal court setting.
George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.
