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The Attorney-Client Privilege in Florida

December 5th, 2013

Posted in General Practice

The attorney-client privilege is one of the most important legal protections that an individual or entity has when seeking legal advice from a Florida attorney.  Section 90.502(c) of the Florida Statutes states that communication between an attorney and a client is confidential if it is not intended to be disclosed to a third-party other than when the communication to a third-party is made in the furtherance of legal service to the client or when the use of a third-party is reasonably necessary for communication between the attorney and client.  It is important to note that there are exceptions that may apply, such as when the attorney’s services are sought to enable what the client knows to be a crime or fraud.  The purpose of the statute is to protect almost all information disclosed by the client.  However, this protection can be waived and subject to disclosure if third-parties are involved in the communication.  Moreover, Section 90.507 of the Florida Statutes provides that the attorney-client privilege is waived when a confidential matter is voluntarily discussed in a manner where a reasonable expectation of privacy does not exist.  Examples may include copying a third party to an email to your attorney, forwarding an email from your attorney, including a friend in a meeting with your lawyer, or encountering your lawyer at a public venue with other people listening to the conversation and discussing your case.

If a legal issue needs third-party assistance, such as an accountant, the lawyer should separately retain or hire the accountant before the client discloses confidential information in order for privilege to apply.  This is much like a paralegal or law clerk hired by and working for your lawyer.  If done properly, the attorney-client privilege may apply to those third parties.  The court ruled in United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961) that when a client makes a confidential statement to a non-attorney for the purpose of furthering their attorney’s legal advice, such as when an accountant is called in to assist an attorney is understanding complex financial documents, the communication to the third party agent is protected by attorney-client privilege.  In order to ensure the attorney-client privilege is upheld by qualifying the communication as being made in furtherance of legal service, it is strongly advisable that the non-attorney, third-party execute a contract with the attorney that addresses terms and objectives of employment and includes notice that all communications and documents are privileged work product, confidential, and property of the law firm.

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