Attorney Client Privilege

By Ted Babbitt
September 2016

The recent case of Coffey-Garcia v. South Miami Hospital, Inc., 31 Fla. L. Weekly D1458 (Fla. 3rd DCA 2016) is a primer on the attorney-client privilege.  The case arose out of a malpractice case where the statute of limitations was at issue.  Under Fla. Stat. 95.11(4)(b)  the statute of limitations in a malpractice case is two years from the time the incident giving rise to the action occurred or within two years of the time the incident was discovered.

Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) stands for the proposition that the discovery portion of the statute relates not only to knowledge of the injury but also knowledge that there was a reasonable possibility that the injury was caused by medical malpractice.

In the case under discussion, the trial court entered an order requiring plaintiff to answer all questions related to when she sought counsel, the names of the attorneys she consulted and the reasons why she first sought out legal counsel.  The Third District affirmed the trial court as to the first two issues but reversed as to the last.  In doing so the Court analyzed the attorney-client privilege and distinguished it from the rule of client-lawyer confidentiality.

The Court discussed the Fla. Evidence Code section 90.502 which relates to the client’s right of confidentiality in disclosure of lawyer-client communications with respect to judicial and administrative hearings.  The Court distinguished the rule of client-lawyer confidentiality which applies in situations outside of the courtroom or other instances when evidence is sought.

The court explained that the rule of client-lawyer confidentiality derives from the ethics code and that “The Code of Professional Responsibility protects more than confidential communications, it protects 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.”  At 1459, footnote 1.

The operative issue in the case at bar, according to the Court, was covered by Fla. Stat.  90.502(2) which provides

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.

  1. Those reasonably necessary for the transmission

of the communication.  At 1458.

The Court reasoned that the attorney client privilege, unlike the client- lawyer confidentiality rule, protects only communications to and from the lawyer and does not protect facts known by the client independent of the lawyer-client communication.  This means that facts known to the client are not protected merely because the client tells those facts to the lawyer.

In other words, [t]he client cannot be compelled to
answer the question, ‘What did you say or write
to the attorney?’ but may not refuse to disclose
any relevant fact within his knowledge merely
because he incorporated a statement of such
fact into his communication to this attorney.
Upjohn Co. v. U.S., 449 U.S. 383, 396 (1981).
At 1468.

In this case the Third District held that the burden of initially going forward and establishing the existence of an attorney-client privilege rests with the party asserting the privilege but once established the party seeking the disclosure bears the burden of proving that the communications are not privileged.

The Third District, in affirming the trial court on the issues of when the plaintiff first sought a lawyer and the names of the attorneys she consulted with,  cites the established law that

Courts have consistently held that the general
subject matters of clients’ representations are
not privileged.  Nor does the general purpose
of a client’s representation necessarily divulge
a confidential professional communication,
and therefore that data is not generally privileged.
At 1459.

With respect to the third part of the trial court’s order that the plaintiff would be required to divulge the reasons why she first sought out legal counsel, the Third District reversed, finding that such revelation impermissibly allows inquiry into confidential communications between the plaintiff and her lawyers.  The Court held that the attorney-client privilege trumps any need of the defense to prove their statute of limitations defense unless they can establish facts outside the communications of the plaintiff with her lawyers.

            The Court held:
While Ms. Coffey-Garcia can be required to answer
factual questions about what she learned at various
points in time concerning the nature and potential
causes of her daughter’s condition from sources other
than the attorneys that she consulted, she cannot
be forced to answer questions that would require her
to reveal the contents of advice or information she
received from the attorneys.
It is of no account that the answers to such questions
might prove useful or even necessary to determine
When the Garcias discovered or should have
discovered that there was a ‘reasonable possibility’
that medical malpractice caused Samantha’s cerebral
palsy.  The hospital, clinics, and doctors’ need for
this information to prove their statute of limitations
defense does not justify an invasion of the privilege.
“[T]he attorney-client privilege  . . is not concerned
with the litigation needs of the opposition party.”
Genovese v. Provident Life & Accident, Ins. Co.,
74 So. 3d 1064, 1068 (Fla. 2011).  ‘[U]ndue
hardship is not an exception, nor is disclosure
permitted because the opposing party claims that
the privileged information is necessary to prove
their case.”  Id.  (quotation and citation omitted).
At 1459.

This case reviews the law on attorney-client privilege and the rule of  client-lawyer confidentiality and confirms that the attorney-client privilege, once established, precludes revelation of the contents of communication between  clients and their lawyers regardless of the need for such information to establish a claim or defense.