GUSTAVO PRIETO, PETITIONER,
v.
UNION AMERICAN INSURANCE CO., ET AL., RESPONDENTS
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Gustavo Prieto seeks review of a discovery order requiring him to disclose communications with his attorneys in an underlying negligence case. The court grants certiorari, quashing the discovery order and holding that Prieto did not waive the attorney-client privilege despite making limited statements during his deposition.
Prieto did not waive the attorney-client privilege. Waiver requires intentional relinquishment of a known right, and the transcript shows an unequivocal assertion of privilege with Prieto making only confused, limited statements before privilege objections could be fully translated.
[1] The attorney-client privilege is not waived by a client's limited statements made during a deposition, especially when the client is confused and counsel has persistently…
[2] Waiver of the attorney-client privilege requires the intentional relinquishment of a known right.
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Join FLexlaw to unlock all legal intelligence“Waiver imports the intentional relinquishment of a known right.”
Establishes the legal standard for waiving attorney-client privilege
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Join FLexlaw to unlock all legal intelligenceMonica Sanchez sued Gustavo Prieto for motor vehicle negligence. Union American Insurance Company, Prieto's liability insurer with $10,000 coverage, a…
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NESBITT, Judge.
By petition for writ of certiorari, Gustavo Prieto seeks review of a discovery order. We grant the petition and quash the order under review.
Monica Sanchez sued Gustavo Prieto for motor vehicle negligence. Prieto was liability insured with Union American Insurance Company (Union), however, his coverage was limited to $10,000. Union appointed counsel for Prieto and defended the underlying suit through verdict and judgment in Sanchez’s favor. PosUexcess judgment, Sanchez brought this action against Union for bad faith. At issue is her allegation that Union failed to act with due regard for Prieto’s interests in defending the suit rather than attempting in good faith to settle. Union denies that settlement was possible.
During the course of Union’s deposition of Prieto, Union attempted to discover the substance of his communications with appointed counsel in the underlying suit. Prieto’s counsel raised attorney-client privilege wherein the following exchange occurred.
Union’s Counsel: Do you refuse to allow him to answer any questions about the conversation with his lawyer?
Petitioner’s Personal Counsel: Yes, sir. Union Counsel: We’ll certify that. And you would continue to object to any questions I had along that line?
Petitioner’s Personal Counsel: It’s a continuing objection.
Union, however, proceeded to question Prieto about his conversations with his lawyers. Prieto’s counsel persistently objected. As the questioning continued, it turned to communications and correspondence sent by Union, in response to which Prieto stated, “[I]t was my choice whether I retained an attorney. That’s the reason why I called [attorney] Gil.” Prieto also testified that he took letters sent by Union to Gil’s office and signed them there, and that Gil “probably” explained the documents to him. Prieto’s counsel then objected and again instructed his client not to answer any questions regarding conversations with his attorneys.
Following the deposition, Union filed a motion to require response to questions. At a hearing which followed, Union’s counsel for the first time argued that Prieto had made voluntary disclosures during his deposition which waived the attorney-client privilege. The trial court subsequently rendered an order finding Prieto had waived the attorney-client privilege, and ordering that Union be allowed to depose Prieto’s attorneys “and inquire as to their conversations with Mr. Prieto.” The instant petition followed.
Waiver imports the intentional relinquishment of a known right. See Smith v. Armour Pharmaceutical Co., 888 F.Supp. 1573 (S.D.Fla.1993) (waiver of attorney-client privilege must be intentional); see also Brookings v. State, 495 So. 2d 135, 139 (Fla. 1986) (“mere fact that a witness-client testifies to facts which were the subject of consultation with counsel is no waiver of the privilege.”). The transcript shows an unequivocal assertion of privilege with a confused Prieto, at times, blurting out a few statements, before the interpreter on hand could even finish translating the objections of Prieto’s counsel or his instruction to Prieto not to respond. Thus we conclude that in the instant case, Prieto did not waive the attorney-client privilege by the limited statements he made.
Accordingly, the petition for certiorari is granted, the order under review is quashed, and the cause is remanded.
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Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1997)…t an attorney-client communication is confidential if it is not intended to be disclosed to third parties. Florida law recognizes that the waiver of a privilege “imports the intentional relinquishment of a known right.” Prieto v. Union Am. Ins. Co., 673 So. 2d 521, 523 (Fla. 3d DCA 1996). “Inadvertent production is the antithesis of that concept.” Kusch, 645 So. 2d at 1039 (Stevenson, J., concurring in part, dissenting in part). Hence, one cannot be deemed to have waived a privilege upon the inadvertent produ…
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Barrero v. Ocean Bank, 729 So. 2d 412 (Fla. 3d DCA 1999)…the bank’s motion as untimely, however, the trial court concluded that Barrero had waived his right to challenge the timeliness of the bank’s motion. A “[wjaiver imports the intentional relinquishment of a known right.” Prieto v. Union Am. Ins. Co., 673 So. 2d 521, 523 (Fla. 3d DCA 1996); see also Abamar Housing and Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276, 278 (Fla. 3d DCA), review denied, 704 So. 2d 520 (Fla.1997). We cannot agree that the record before us evinces a waiver on the part of Bar…
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Asplundh Tree Expert Co. v. Barnes, 689 So. 2d 1200 (Fla. 4th DCA 1997)…ndant to the customer referencing the advice of “our attorney’s” (sic) did not amount to a waiver of the confidentiality of any communications with Asplundh’s attorney that may have prompted her to give advice. See Prieto v. Union American Ins. Co., 673 So. 2d 521, 522-23 (Fla. 3d DCA 1996). The only record evidence is that the eodefendant relied on the advice of an attorney other than Asplundh’s to make the decision mentioned in the letter. Because the privilege applies to the proposed [*1201] substantive qu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brookings v. State, 495 So. 2d 135 (Fla. 1986)