LAS OLAS RIVER HOUSE CONDOMINIUM ASSOCIATION, INC., THE CONTINENTAL GROUP, INC., JOHN QUAINTANCE, JEROME SCHECHTER, AND ARMINDA FIGUEROA, PETITIONERS,
v.
LORH, LLC, SANDY ROBERT LEVY, CPA, PL, D/B/A CHOICE REALTY, AND SANDY ROBERT LEVY, RESPONDENTS
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A condominium association and its defendants sought certiorari to quash an order compelling production of attorney-client privileged documents. The trial court ordered production without conducting an in camera inspection, finding the privilege was waived because documents were shared with the property manager and his supervisor. The appellate court reversed, holding that the trial court must conduct an in camera inspection applying the Deason test to determine whether disclosure to corporate agents waives privilege.
The trial court erred by ordering production without an in camera inspection. The court must conduct an in camera inspection applying the five-part Deason test to determine whether disclosure to the property manager and supervisor—who were agents of the association performing duties requiring communication with counsel—waived the attorney-client privilege.
[1] A trial court must conduct an in camera inspection to determine whether the attorney-client privilege has been waived by disclosure to third parties.
[2] Communications made to counsel by an employee at the direction of a corporate superior, relating to legal services and within the scope of the employee's duties, are priv…
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Join FLexlaw to unlock all legal intelligence“A communication between lawyer and client is "confidential" if it is not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication.”
Establishes the statutory definition of confidential communications under Florida Evidence Code § 90.502
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Join FLexlaw to unlock all legal intelligencePetitioners are defendants in a lawsuit brought by the corporate owner and lessee of commercial condominium units and Sandy Robert Levy. The suit aros…
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A condominium association, the firm it retained to manage the condominium property, and officers of its board of directors (“Petitioners”) seek a writ of certiorari to quash an order compelling them to produce documents over their assertion of the attorney-client privilege. Petitioners ar*557gue the trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents without conducting an in camera inspection. We agree and grant the petition.
Petitioners are among the defendants in a lawsuit brought by the corporate owner of two commercial units in the condominium, its corporate lessee, and the individual, Levy, who is the authorized representative of ,both corporate plaintiffs.- . The suit was brought after years of contention between Levy and the condominium association, during which he repeatedly threatened to sue the association and its directors and agents. In the course. of discovery, plaintiffs propounded requests for production of communications mentioning any of them, during the five years before the complaint was filed, between the defendant served with the request, and either (1) the attorney who served as the association’s general counsel during this period, or (2) the attorney whom the association retained during this period to advise it concerning Lévy’s repeated threats to sue. Petitioners filed privilege logs asserting the attorney-client privilege.
Following a hearing, the trial court compelled the production of many such documents based on the plaintiffs’ argument that the privilege was waived because the documents were received by, or copied to, third parties: either the association’s community association manager, his immediate supervisor, or both. These two individuals were employees of the association’s property management company, which in turn acted as the association’s agent pursuant to a written management contract. Petitioners argued there was no waiver of the privilege - because the individuals were agents of the association whose contractual duties required them to communicate with the association’s counsel on the association’s behalf. .They explained to the trial court that an association’s property manager. keeps the association’s counsel informed of day-to-day events precipitating the. need for legal services, and disseminates counsel’s communications to the board, acting as the. point person for counsel to deal- with on behalf .of the association. . The trial court — without an in camera inspection of the documents, which Petitioners had brought to the hearing for that purpose — rejected that argument and found the privilege was waived bécause the two individuals were not “employees” of the association within the meaning of Southern Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377 (Fla.1994) [hereinafter Deason] (adopting a subject-matter test to determine whether corporate communications with counsel are privileged).
The trial court also found that the privilege log descriptions of the documents were insufficient to assist it in determining whether the privilege applied. Most documents were described, for example, as “Email correspondence from counsel regarding condominium association representation.”
Under our Evidence Cbde, “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of -legal services to the client.” § 90.502(2), Fla.Stat. (2014) (emphasis added).
A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:
1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2. Those reasonably necessary for the transmission of the communication.
*558§ 90.502(1)(c), Fla. Stat. (2014). The second exception applies to agents of the client — for example, when a family member acts on behalf of an incapacitated relative, Witte v. Witte, 126 So.3d 1076 (Fla. 4th DCA 2012), or when a messenger is needed for a client to contact counsel, Gerheiser v. Stephens, 712 So.2d 1252 (Fla. 4th DCA 1998).
“A communication, then, by any form of agency employed or set in motion by the client is within the privilege. This of course includes communications through an interpreter, and also communications through a messenger or any other agent of transmission, as well as communications originating with the client’s agent and made to the attorney.”
Id. at 1255 (quoting 8 Wigmore, Evidence § 2317, at 618 (McNaughton rev.1961) (footnotes omitted)).
A corporation, of course, acts only through its agents. In Deason, the Florida Supreme Court considered “what constitutes a confidential communication in the corporate context.” 632 So.2d at 1382. Among the- items at issue were statements made by company employees to the company’s counsel. Id. at 1381. The court noted that when the attorney-client privilege is applied to corporations, considerations are different, as compared to when the privilege is applied to natural persons: “First, a corporation can only act through its agents, whereas a natural person can seek legal advice and then directly act (or not act) upon that advice. Second, a corporation relies on its attorney for business advice, more than the natural person.” Id. at 1383. The proper standard must balance the policy of encouraging corporations to seek legal advice, and preventing them from using their attorneys as shields to cloak information from discovery. Id.
The Deason court set forth a five-part test for determining whether a corporation’s communications are attorney-client privileged:
(1) the communication would not have been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of his or her corporate superior;
(3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
(4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;
(5) the communication is not disseminated beyond those persons-who, because of the corporate structure, need to know its contents.
Petitioners told the trial court that the communications in question, which were shared with the two third parties, would not have been made but for the association’s contemplation of legal services; the subject matter was within the scope of the property manager’s duties to the association; and the communications were not disseminated beyond those who, because of the corporate structure, needed to know the contents. The association’s board ensured the two individuals understood that all communications relating to counsel’s representation of the association were attorney-client privileged and could be disclosed only to persons who needed to know because of the structure of the association. We agree that the trial court should have applied a test based on Dea-son, and should have determined, in the course of an in camera inspection, whether the privilege as to each document or class of documents was waived by disclosure to the property manager and his supervisor. See RC/PB, Inc. v. Ritz-Carlton Hotel Co., 132 So.3d 325, 327 (Fla. 4th DCA 2014) *559(quashing order compelling production and directing trial court to conduct an in camera inspection and consider Deason factors, where third parties were involved in corporation’s communications with counsel).
We reject Respondents’ argument that Petitioners waived any right to an in camera inspection by suggesting to the judge that he could uphold their privilege claims without conducting one. We also reject Respondents’ argument that the privilege was waived by the insufficiency of Petitioners’ privilege log descriptions. See Progressive Am. Ins. Co. v. Lanier, 800 So.2d 689, 691 (Fla. 1st DCA 2001) (finding the trial court departed from the essential requirements of law in compelling production of notes from insurer’s claim file, as privilege log descriptions such as “conversations with defense counsel” and “summary of conversation with defense counsel” were sufficient); see also Sedgwick Claims Mgmt. Servs., Inc. v. Feller, 163 So.3d 1252, 1254 (Fla. 5th DCA 2015) (determining the trial court erred in finding that insufficient detail in a privilege log waived the attorney-client privilege, where counsel could have been given opportunity to amend log to cure any defects, and noting that while failure to follow discovery rules may be sanctioned by waiver of privilege, such waiver should result only when violation is serious).
Petition granted, order quashed, and case remanded for the trial court to conduct an in camera inspection, applying the test set forth in Deason to determine whether the attorney-client privilege was waived by disclosure to third parties.
CIKLIN, C.J., WARNER and STEVENSON, JJ., concur.
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Andreatta v. Brown (Fla. 1st DCA 2021)…d 689, 691 (Fla. 1st DCA 2001) (explaining “conversations with defense counsel” and “summary of conversation with defense counsel” were adequate, and appropriately asserted a privilege); see also Las Olas River House Condo. Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 557, 559 (Fla. 4th DCA 2015) (finding log entries adequate where they stated “E-mail correspondence from counsel regarding condominium association representation”). If Respondents’ counsel wanted the header lines (e.g., “From,” “Sent,” “To,” and “S…
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Am. Airlines, Inc. v. The Est. of Michael Cimino (Fla. 4th DCA 2019)…e the scope of the waiver before it may compel discovery of information. 22 So. 3d at 781 (internal citations omitted); accord Butler v. Harter, 152 So. 3d 705, 714 (Fla. 1st DCA 2014); see also Las Olas River House Condo. Ass’n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015) (holding it was error to order production of documents regarding communications with the condo association and its attorneys without an in camera inspection on the basis the privilege was waived by disclosure to the associat…
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Citizens Prop. Ins. Corp v. One Call Prop. Servs. (15th Cir. Ct. App. Div. 2015)…ghtened level of scrutiny." Id. Whether attorney-client privilege attaches to communications held between Breese and Citizens' counsel is a question that must be resolved by the trial court. See Las Olas River House Condo. Ass'n, Inc. v. Lorh, LLC, 181 So. 3d 556, 559 (Fla. 4th DCA 2015). In Las Olas River House Condo. Ass'n, Inc., petitioners sought a writ of certiorari to quash an order compelling them to produce documents they claimed were attorney-client privileged. Id. at 556-57. There, the trial court…
Authorities Cited
- S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994)
- Progressive Am. Ins. Co. v. Lanier, 800 So. 2d 689 (Fla. 1st DCA 2001)
- Gerheiser v. Stephens, 712 So. 2d 1252 (Fla. 4th DCA 1998)
- Sedgwick Claims Mgmt. Servs., Inc. v. Feller, 163 So. 3d 1252 (Fla. 5th DCA 2015)
- RC/PB, Inc. v. The Ritz-Carlton Hotel Co., L.L.C., 132 So. 3d 325 (Fla. 4th DCA 2014)
- Witte v. Witte, 126 So. 3d 1076 (Fla. 4th DCA 2012)