JOHN R. ASHCRAFT, INDIVIDUALLY AND F/U/B/O LAURA ASHCRAFT, APPELLANTS,
v.
RICHARD D. HARVEY AND C. SHELBY DALE, APPELLEES
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Plaintiffs appealed the trial court's denial of discovery regarding bank statements and check records from an attorney's trust account, claiming attorney-client privilege. The court held that attorney-client privilege does not protect such records when the underlying client-defendant would be compelled to produce them, but remanded for a protective order limiting discovery to relevant transactions only.
Attorney-client privilege does not protect trust account records from discovery under these circumstances because the privilege belongs to the client and does not extend to protect a client's documents that the client himself would be compelled to produce. However, the trial court should enter a protective order limiting discovery to items and transactions relevant and material to the plaintiffs' claims.
[1] The attorney-client privilege does not protect an attorney from producing client documents that the client would be compelled to produce.
[2] The attorney-client privilege belongs to the client and is designed to protect confidential information, not to shield the attorney.
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Join FLexlaw to unlock all legal intelligence“attorney-client privilege belongs to the client, and is not intended to protect the attorney and is designed to protect confidential information only”
Establishes the foundational principle that privilege serves the client's interest in confidentiality, not the attorney's interests
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued defendants Richard D. Harvey and C. Shelby Dale (an attorney allegedly representing Harvey) for damages, accounting, and constructive …
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WALDEN, Judge.
The trial court refused to allow discovery as to certain
“bank statements, cancelled checks, and check records of the C. Shelby Dale Trust Account in The First National Bank in Fort Lauderdale for the period March 24, 1971 through July 31, 1971.”
Plaintiffs appeal. We reverse and remand with instructions.
C. Shelby Dale, Esquire, is alleged to be attorney for Richard D. Harvey and Fibre Crete Homes of Florida, Inc. Plaintiffs sued Harvey and Dale in a nine count Complaint involving claims for damages, an accounting and constructive trust.
Without detailing the gravamen of the complaint, it has to do with two sums of money: $5,300.00 and $3,500.00, which were delivered to the defendants and to have been used by them for a certain purpose. Interwoven are charges of fraud and misrepresentation.
According to the appellate presentment, the basis for the denial of this discovery was the attorney-client privilege. We are of the opinion that such privilege does not obtain under the circumstances of this case.
In Wirtz v. Fowler, 372 F. 2d 315 (5th Cir.1966) the court held that attorney-client privilege belongs to the client, and is not intended to protect the attorney and is designed to protect confidential information only. In Gibson v. Florida Legislative Investigation Committee, 108 So. 2d 729 (Fla.1959) the Supreme Court held that a client cannot use the office of the attorney to evade an obligation the client owes. See Falsone v. United States, 205 F. 2d 734 (5th Cir. 1953). See 8 Wigmore on Evidence § 2307 (1961), in which is discussed the fact that a client’s documents must be delivered up from an attorney if the client himself would be compelled to give up possession. The client-defendant Harvey would be compelled to produce his records of any transactions with the funds under dispute, therefore the attorney-defendant Dale should deliver up such records. We reverse the denial of discovery.
We do find fault, however, with the broadness of the discovery effort. From the request it would seem that the attorney’s trust account would be subject to scrutiny without limitation as to all of his clients and of all of his trust transactions. We think that the discovery should be limited reasonably to items and transactions relevant and material to plaintiffs’ cláim. 10 Fla.Jur., § 12 Discovery and Depositions (1973). Thus the trial court should enter a protective order properly limiting the encroachment into the trust account records of C. Shelby Dale.
The orders are reversed and remanded for further proceedings consistent herewith.
Reversed and remanded.
CROSS and MAGER, JJ., concur.
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Kenneth Friedman, M.D. v. Heart Inst. OF Port ST. Lucie, Inc., 863 So. 2d 189 (Fla. 2003)…financial information at issue was relevant to the calculation of damages under the breach of contract [*195] count. Discovery of these matters was proper.”); Citibank, N.A. v. Plapinger, 461 So. 2d 1027, 1027 (Fla. 3d DCA 1985); Ashcraft v. Harvey, 315 So. 2d 530, 531 (Fla. 4th DCA 1975). As we stated in Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987), “Litigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case.... [W]e do n…
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Goldberg v. Eli Ross, 421 So. 2d 669 (Fla. 3d DCA 1982)…PER CURIAM. We reverse the trial court’s order which denied discovery of a judgment debt- or’s trust fund records held by his attorney upon a holding that the attorney-client privilege does not extend to such records. Ashcraft v. Harvey, 315 So. 2d 530 (Fla. 4th DCA 1975); Silverman v. Turner, 188 So. 2d 354 (Fla. 3d DCA 1966). Documents which are not privileged in the hands of the client cannot be shielded by transferring them to the attorney. Ashcraft, supra. Reversed and remanded.…
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Paper Corp. OF Am. v. Schneider, 563 So. 2d 1134 (Fla. 3d DCA 1990)…cords and data which are not privileged in the hands of the client cannot be shielded from discovery deposition or subpoena by transferring them to the client’s accountant. See Goldberg v. Ross, 421 So. 2d 669 (Fla. 3d DCA 1982); Ashcraft v. Harvey, 315 So. 2d 530 (Fla. 4th DCA 1975); Silverman v. Turner, 188 So. 2d 354 (Fla. 3d DCA 1966). Both the protective order and the assessment of attorney’s fees herein must therefore be reversed and the plaintiff upon remand shall be allowed to depose Howard J. Schneid…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Falsone v. United States, 205 F.2d 734 (5th Cir. 1953)
- Wirtz v. Fowler, 372 F.2d 315 (5th Cir. 1966)
- Gibson v. Fla. Legis. Investigation Comm., 108 So. 2d 729 (Fla. 1958)