BENJAMIN CHILDS, APPELLANT,
v.
MARK S. SOLOMON, APPELLEE
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Childs appealed the dismissal of his legal malpractice counterclaim after he invoked his Fifth Amendment privilege during deposition in a civil foreclosure action. The court reversed, holding that a party may properly assert the privilege against self-incrimination in civil discovery when there are reasonable grounds to believe answers would furnish evidence of a crime, and dismissal was an abuse of discretion when alternative remedies were available.
A party may properly assert the privilege against self-incrimination during civil discovery if there are reasonable grounds to believe direct answers would furnish a link in the chain of evidence needed to prove a crime. Dismissal of a counterclaim is an abuse of discretion when the court fails to consider alternative remedies such as continuing the civil action that are not tantamount to denying the right to assert the privilege.
[1] A Fifth Amendment privilege against self-incrimination may be properly asserted during civil discovery proceedings if direct answers to deposition or interrogatory questi…
[2] Dismissal of a counterclaim with prejudice is an abuse of discretion when the dismissal is based on the assertion of a Fifth Amendment privilege, and less severe remedies…
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Join FLexlaw to unlock all legal intelligence“It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him.”
Establishes the legal standard for asserting Fifth Amendment privilege in civil discovery
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Join FLexlaw to unlock all legal intelligenceSolomon, an attorney, sued Childs to foreclose on property as compensation for criminal defense services. Childs counterclaimed for legal malpractice …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This appeal is brought from the dismissal of a defendant’s compulsory counterclaim asserting a Fifth Amendment privilege to questions propounded in a deposition.
Mark S. Solomon, an attorney, brought this action to foreclose on property owned by his former client, Childs, as compensation for services rendered to the client in a criminal action. Childs counterclaimed for legal malpractice in the still-pending criminal action. It is agreed that refiling of the counterclaim will be barred by the statute of limitations.
In response to Mr. Solomon’s motion to strike the counterclaim for failure to answer deposition questions, the appellant requested the trial court to consider alternative relief, such as, entering an order that the contents of the deposition remain confidential and that the court file be sealed until completion of the criminal action, or abatement of the civil action. There was no assertion or finding that the discovery questions were irrelevant to Childs’s theory of defense in the criminal action. Nevertheless, the trial court struck the counterclaim on grounds that the Fifth Amendment could not be used “as a sword and a shield.” We reverse. It is settled law that the privilege against self-incrimination may be properly asserted during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him. Rainerman v. Eagle Nat’l Bank, 541 So. 2d 740 (Fla. 3d DCA 1989). One remedy used by courts when faced with that situation is to continue the civil action. See Miami Nat’l Bank v. Greenfield, 488 So. 2d 559, 561 (Fla. 3d DCA) (civil trial delayed until criminal prosecution is completed or abandoned), rev. denied, 497 So. 2d 1217 (Fla.1986).
On the facts presented by the record in this case, dismissal of the counterclaim, effectively with prejudice, was an abuse of discretion. We agree with the counterclaimant that, assuming that the plaintiff could show some prejudice by his assertion of a Fifth Amendment right, the court should have considered a remedy which was not tantamount to a denial of the right to assert the privilege.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Janace K. Doolittle v. Shumer, 152 So. 3d 779 (Fla. 5th DCA 2014)…during discovery proceedings if the civil litigant has reasonable grounds to believe that direct answers to deposition or interrogatory questions would furnish a link in the chain of evidence needed to prove a crime against him.” Childs v. Solomon, 615 So. 2d 865, 866 (Fla. 3d DCA 1993) (citing Rainerman v. Eagle Nat’l Bank, 541 So. 2d 740 (Fla. 3d DCA 1989)). The trial court, however, in considering a request for abatement should exercise the least intrusive means in fashioning relief, keeping in mind that…
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Moises Wahnon v. Coral & Stones Unlimited Corp. (Fla. 3d DCA 2020)…088 (5th Cir. 1979)). Where the privilege has not been waived, the use of civil contempt to force a party asserting the Fifth Amendment to testify should be reserved for only the most extraordinary circumstances, if at all. 2 See Childs v. Solomon, 615 So. 2d 865, 866 (Fla. 3d DCA 1993) (noting a continuance, rather than dismissal or striking of the pleadings, may be an appropriate remedy when defendant in a civil proceeding asserts the Fifth Amendment). But see Urquiza, 994 So. 2d at 478 (“Although under ce…
Authorities Cited
- Rainerman v. Eagle Nat'l Bank OF Miami, 541 So. 2d 740 (Fla. 3d DCA 1989)
- Sedano's Mkt., Inc. v. Aleman, 488 So. 2d 559 (Fla. 3d DCA 1986)
- Miami Nat'l Bank v. Leo Greenfield, Leo Greenfield, P.A., 488 So. 2d 559 (Fla. 3d DCA 1986)