6-4 "At Issue" and "Selective Disclosure" Doctrines

• Jurisdiction: United States

6-4 "At Issue" and "Selective Disclosure" Doctrines

The "at issue" doctrine was defined by the Florida Supreme Court in Savino v. Luciano,⁵³ a case involving the accountant-client privilege. It held that "[w]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence, we think that he has waived his right to insist, in pretrial discovery proceedings, that the matter is privileged."⁵⁴ The "selective disclosure" doctrine limits the attorney-client waiver to communications on the same matter.⁵⁵

Both doctrines were analyzed in Coates v. Akerman, Senterfitt & Eidson, P.A.⁵⁶ The defendant lawyers sought documents concerning advice received by the former client from other professionals regarding a proprietary tax savings plan and the creation of a joint venture. The lawyers claimed a waiver of the attorney-client privilege, arguing advice received from other professionals had been put at issue by the plaintiff.

The court began its review by stating a waiver of privileges is not favored and simply bringing or defending a lawsuit does not waive the attorney-client privilege.⁵⁷ Moreover, the fact that the client is obtaining advice from other professionals while simultaneously being advised by the professional being sued does not negate the privilege.⁵⁸ Because the claims were based on advice received from the lawyers being sued, not the advice received from the other professionals, the at issue doctrine was deemed inapplicable.⁵⁹

Similarly, the selective disclosure doctrine did not trump the attorney-client privilege. Waiving the privilege and disclosing certain documents that involved the tax savings plan and the joint venture did not require the disclosure of communications with other attorneys on the same issues.⁶⁰ The waiver was limited only to the specific facts revealed by the documents or the testimony.

The appellate panel relied on Old Stone Bank v. Farris⁶¹ for its holding on the selective doctrine aspect of the case. Old Stone determined that producing a memorandum from a bank attorney did not waive communications as to the entire transaction with the attorney.⁶²

In a pair of rulings arising out of a bitter divorce case, the Middle District of Florida has come to the same conclusions.⁶³ The defendant lawyer conducted an estate plan review for a husband and wife. Later, the couple divorced. The wife, believing that the lawyer had improperly helped the husband during the divorce, sued the lawyer for legal malpractice and breach of fiduciary duty. In particular, she sought $330,000 in attorneys' fees that she claimed she had been forced to expend due to the lawyer's meddling behavior.

In response, the lawyer sought the entire file of the wife's divorce attorney. The wife objected to this demand, claiming that much of the information was privileged. In agreeing with this contention, the court wrote:

Plaintiff did not waive the attorney-client and work product privileges simply by bringing this lawsuit. She also did not waive a privilege by including attorney's fees from the dissolution of marriage case in her damage claim. Nothing has been presented to suggest that the amounts Plaintiff paid her lawyer for

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