George C. Palaidis
This is confidential, right?
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.
Conveniently, the Third District Court of Appeal in Miami recently released an opinion that gives a thorough explanation of confidentiality and privilege in the attorney-client realm. The case is Michelle Coffey-Garcia, et al. v. South Miami Hospital,Inc., et al.
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 a personal injury or in the criminal court setting.