6-2 Applicability

• Jurisdiction: United States

6-2 Applicability

Unless it is waived,³ or an exception exists, the attorney-client privilege is enforced in a legal malpractice action just as it would be in any other type of action.⁴ The case of Shafnaker v. Clayton⁵ is particularly illustrative.⁶

In Shafnaker, the clients claimed the second law firm that represented them in a lawsuit arising from the negligent application of hazardous chemicals committed malpractice. The defendant law firm sought production of documents from the first law firm that represented the clients. The court held that the documents maintained by the first law firm were not discoverable.

On appeal, the second law firm claimed that the privileged information was vital to its defense. The First District Court of Appeal was not impressed with this argument and explained that the "mere possibility that petitioners may not have been fully candid with respondents does not constitute a waiver of attorney-client privilege with other attorneys."⁷ However, if a party has introduced issues that go to the very heart of the litigation, discovery cannot be avoided by such party because of the attorney-client privilege.⁸

Shafnakerwas cited with approval in Coyne v. Schwartz, Gold, Cohen, Zakarin & Kot-ler, P.A.⁹ and Volpe v. Conroy, Simberg & Ganon, P.A.¹⁰ In both cases, decided less than one month apart, certiorari review was sought of trial court orders seeking production of communications between the plaintiffs and attorneys who were not defendants in the malpractice proceeding. The defendant lawyers' claim that communications with the other lawyers were critical to their defense was held insufficient to override the attorney-client privilege, with the Volpe court stating: "The attorney-client privilege cannot be set aside simply because the opposing party claims that the information held by the attorney is necessary to prove the opposing party's case."¹¹

Interestingly, the respective clients obtained different relief. In Coyne, the appellate court remanded the case with instructions for the trial court to hold an in camera inspection to determine the applicability of the privilege.¹² The Volpe court merely quashed the trial court's order.¹³

Coyne is not the only case to require an in camera inspection. Alliant Insurance Services, Inc. v. Riemer Insurance Group¹⁴ addressed the scope of an attorney-client waiver when the general counsel of a party provided an affidavit. The court required an in camera review before disclosure of the documents claimed to be privileged.¹⁵

Coyne was cited with approval in United Services Automobile Ass'n v. Law Offices of Herssein and Herssein, P.A.¹⁶

In 2008, a law firm was hired by an insurance company to handle its insureds' claims. In 2015, after allegedly mishandling a personal injury case, the insurance company fired the law firm. In response, the law firm sued the insurance company for $20 million. The gravamen of its complaint was that the insurance company had failed to send it enough PIP cases.

The insurance company filed a five-count legal malpractice counterclaim against the law firm. One of the counts involved the personal injury case, which the insurance company had settled with the help of a different lawyer. According to the insurance company, the law firm's negligence had forced it to exceed the policy limits ($100,000).

To find out more about the settlement, the law firm propounded the following interrogatory: "Whose advice did USAA take to settle [Claimaint's [sic] Case] and pay over the insured's policy limits, if that is what occurred?" The insurance company refused to answer, citing attorney-client privilege. The law firm also subpoenaed the lawyer that had replaced it on the case and demanded that he produce his case file. He, too, refused.

The trial court ruled that both the interrogatory and the subpoena were proper. The Third District Court of Appeal disagreed: "[T]he 'malpractice exception' is applicable only to communications between the client and the lawyer being sued for malpractice. See Coyne, 715 So.2d at 1022-23. The 'malpractice exception,' therefore, is inapplicable to communications between USAA and Wadsworth [the successor lawyer]."¹⁷

In Bivins v. Rogers,¹⁸ a personal representative sued the decedent's guardians and their attorneys for not properly administering a guardianship to maximize its assets. A discovery issue arose as to who held the attorney-client privilege between the guardian and his attorneys. The federal district court framed the issue as follows: "Specifically, after the death of the ward, does the attorney-client privilege run between the guardian and the guardian's attorney or between the personal representative of the deceased ward's estate and the guardian's attorney?"¹⁹

In rendering its decision, the court relied on Florida Statute § 90.5021, adopted in 2011, which states:

(1) For the purpose of this section, a client acts as a fiduciary when serving as a personal representative or a trustee as defined in §§ 731.201 and 736.0103, an administrator ad litem as described in § 733.308, a curator as described in § 733.501, a guardian or guardian ad litem as defined in § 744.102, a conservator as defined in § 710.102, or an attorney in fact as described in chapter 709.
(2) A communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure under § 90.502 to the same extent as if the client were not acting as a fiduciary. In applying § 90.502 to a communication under this section, only the person or entity acting as a fiduciary is considered a client of the lawyer.
(3) This section does not affect the crime or fraud exception to the lawyer-client privilege provided in § 90.502(4)(a).²⁰

Although the Florida Supreme Court did not adopt the statute "because we question the need for the privilege to the extent that it is procedural,"²¹ the district court found it to be the current law and determined that the personal representative of the estate of the deceased ward could not waive the attorney-client privilege. The plaintiff's "logical argument" that "since wards and their estates are permitted to sue the guardians' attorneys for malpractice, it would only make sense for the wards and their estates to be able to obtain the documents necessary to prove their malpractice cases" was rejected as being the "job of the legislature."²²

Whether an attorney...