MAE ROBERTS, PETITIONER,
v.
PATRICIA JARDINE, RESPONDENT
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Mae Roberts sought a writ of certiorari to block her former attorney from answering deposition questions about how he acquired a tape recording allegedly made by Roberts of a telephone conversation. The Florida District Court of Appeal agreed that the questions violated the attorney-client privilege and granted the petition, though it noted that communications planning illegal conduct are not privileged.
The attorney-client privilege prevents the attorney from being compelled to answer the deposition questions without regard to the privilege. However, the court noted that if the communications between client and attorney concerned planning a crime (illegal interception of oral communications), those communications would not be privileged and could be discoverable.
[1] The attorney-client privilege protects confidential communications between a client and their attorney.
[2] A client is entitled to prevent their former attorney from giving testimony that would violate the attorney-client privilege.
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Join FLexlaw to unlock all legal intelligence“The attorney-client privilege is recognized in Florida and exists to protect and keep secret the communications which a client makes to his or her attorney.”
Establishes the fundamental purpose and recognition of the attorney-client privilege in Florida law
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Join FLexlaw to unlock all legal intelligenceRoberts allegedly made a tape recording of a telephone conversation with Jardine without Jardine's knowledge. Roberts's former attorney, William J. Te…
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GRIMES, Chief Judge.
Petitioner seeks a writ of certiorari to reverse an interlocutory orden compelling her former attorney to answer questions on deposition.
She contends that the order violates her attorney-client privilege.
We agree.
We grant the petition and issue the writ.
This is the second certiorari petition which the discovery stage of the litigation between respondent and petitioner has spawned.
See Roberts v. Jardine, 358 So. 2d 588 (Fla. 2d DCA 1978).
As noted in our first opinion, this controversy revolves around respondent’s claim that petitioner made a tape recording of a certain telephone conversation between the parties without respondent’s knowledge.
William J.
Terry, petitioner’s attorney in a previous action, played this recording during a deposition of respondent in that action.
After learning of the existence of the recording, respondent filed a complaint seeking damages from petitioner. She based her action on Section 934.10, Florida Statutes (1977), which authorizes damages for the wrongful interception of oral communications.
Subsequently, respondent took the deposition of attorney Terry at which time counsel for respondent asked Mr. Terry the following questions: 1) How did you acquire this tape? 2) How did you know it was made in March of 1976? 3) Was it made at your request? 4) Are you aware that this tape was going to be made prior to it being made? 5) Did Mae Roberts make the tape? 6) Do you know how the tape was made? 7) Do you know where the tape was made?
Petitioner’s present counsel objected to each of the questions on the grounds that the answers thereto would violate petition er’s attorney-client privilege and instructed Terry not to answer. Respondent filed a motion to compel Mr. Terry to answer the questions, and the trial court granted the motion.
In requiring Terry to answer the questions without regard to the attorney-client privilege, the court departed from the essential requirements of the law.
The attorney-client privilege is recognized in Florida and exists to protect and keep secret the communications which a client makes to his or her attorney.
Anderson v. State, 297 So. 2d 871 (Fla. 2d DCA 1974).
Petitioner is entitled to prevent Mr. Terry from giving any answers which would violate that privilege.
We note, however, that respondent may still be able to require Mr. Terry to answer questions concerning the tape recording.
Any consultations between client and attorney concerning the planning of a crime are not privileged and may be the subject of discovery.
Leithauser v. Harrison, 168 So. 2d 95 (Fla. 2d DCA 1964).
Thus, since Section 934.03, Florida Statutes (1977), makes the interception and disclosure of wire or oral communications illegal, any communications between petitioner and her attorney in planning the taping of the phone conversation would be discoverable.
With respect to the procedure to be followed in attempting to meet the burden of overcoming the attorney-client privilege, see Leithauser v. Harrison, supra; I.T.T. v. United Telephone Co., 60 F.R.D. 177 (M.D.F.1973); McCormick on Evidence, Section 95 (2d ed. 1972).
We hereby quash the order compelling Mr. Terry to answer the enumerated questions.
BOARDMAN and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Affiliated OF Fla., Inc. v. U-Need Sundries, Inc., 397 So. 2d 764 (Fla. 2d DCA 1981)…October of 1976, Mr. Bartz had no basis for invoking a privilege about what occurred at that time. There is also an attorney-client privilege which would protect confidential communications between Affiliated and its attorneys. Roberts v. Jardine, 366 So. 2d 124 (Fla.2d DCA 1979); Anderson v. State, 297 So. 2d 871 (Fla.2d DCA 1974). The fact that some of the documents containing those communications may be in Affiliated’s possession instead of that of its attorneys makes no difference. “The privilege rule w…
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Travelers Ins. Co. v. Habelow, 405 So. 2d 1361 (Fla. 5th DCA 1981)…including attorney-client communications. Travelers asks that this discovery order be quashed insofar as it encompasses such communications, relying on Skorman v. Hovnanian of Fla., Inc., 382 So. 2d 1876 (Fla. 4th DCA 1980), and Roberts v. Jardine, 366 So. 2d 124 (Fla. 2d DCA 1979). See also § 90.502, Fla. Stat. (1979). The trial court’s order apparently was predicated on Stone v. Travelers Insurance Company, 326 So. 2d 241 (Fla.3d DCA 1976), a “bad faith” case. This reliance was misplaced because in defen…
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Williams v. State, 427 So. 2d 331 (Fla. 3d DCA 1983)…DCA 1977). Second, we think that the state was improperly allowed to cross-examine the defendant as to matters falling within the attorney-client privilege, which error we cannot say was harmless within the context of this case. Roberts v. Jardine, 366 So. 2d 124 (Fla. 2d DCA 1979). Reversed and remanded for a new trial.…
Authorities Cited
- Leithauser v. Harrison, 168 So. 2d 95 (Fla. 2d DCA 1964)
- Anderson v. State, 297 So. 2d 871 (Fla. 2d DCA 1974)
- Roberts v. Jardine, 358 So. 2d 588 (Fla. 2d DCA 1978)