This document provides an overview of attorney-client privilege and related issues under Florida law. It summarizes key cases and statutes governing when communications are considered privileged, who can assert or waive the privilege, exceptions, requirements for establishing a privilege when withholding documents, joint defense agreements, child hearsay rules and the confrontation clause, closed circuit testimony of vulnerable witnesses, and limitations of the 5th amendment privilege against self-incrimination. Contact information is provided for the SunTrust Bank Building in Clearwater and Tampa offices of an unnamed law firm.

1. SunTrust Bank
Building
601 Cleveland
St. Suite 800
Clearwater, FL
Clearwater
(727) 441-9030
Tampa
(813) 223-6405

2. ATTORNEY-CLIENT

PRIVILEGE
First Union National Bank of Florida v. Whitener,
715 Southern 2d. 979 (FLA. 5th DCA 1998).
 The privilege belongs to the client and it is the client who may
assert it.
 §90.502
 communication not intended to be disclosed to third persons.
 §90.502(3)(e)
 the privilege does not belong to the lawyer, regardless of the
client’s presence, a lawyer may assert the privilege on behalf of
the client but may not do so on the attorney’s behalf.
 Southern Bell Telephone and Telegraph Co v. Deason,
632 Southern 2d. 1377 (FLA. 1994).
 The burden of establishing is privilege rests on the party
asserting the privilege.

3. Florida Rules of Civil Procedure 1.280
when a party withholds information
otherwise discoverable under the rules of civil
procedure by claiming that it is privileged, the
party must make the claim expressly and
describe the nature of the documents,
communications, or things not produced or
disclosed in a manner that without revealing
information itself privileged, will enable other
parties to assess the applicability of the
privilege.

4. Kaye Scholer LLP v. Zalis,
878 Southern 2d. 447 (FLA. 3d. DCA 2004)
requires the production of a privilege
log in order to preserve a privilege.
The purpose of this requirement is
to identify materials that might be
subject to privilege protection so
that a court can rule on the
applicability of the privilege prior to
trial. A blanket statement in a
privilege log is insufficient to
establish a privilege.

5. Waiver of the privilege. Section 90.507
a person who has a privilege against disclosure of a confidential
matter or communication waives the privilege if the person or
person’s predecessor while holder of the privilege, voluntarily
discloses or makes the communication when he or she does
not have a reasonable expectation of privacy, or
consents to the disclosure of, any significant part of the matter or
communication. This section is not applicable when the disclosure
is itself a privileged communication.

6. Teleglobe Communications Corporation v. BCE,
493 F.3d. 345 (3d Cir. 2007)
when attorney/client communications are disclosed regarding a certain
matter the existence of a limited waiver with respect to
communications on the same, specific matter exists. If a person
other than the client, its attorney, or their agent are present, the
communication is not made in confidence and the attorney/client
privilege does not attach.

7. HCA Health Services of Florida v. Hillman,
870 Southern 2d. 104 (FLA. 2d DCA, 2003)
actual bills submitted by any attorney, including dates of legal
service, hours charged, and the nature of services
performed are deemed discoverable.
Finol v. Finol, 869 Southern 2d. 666 (FLA. 4th DCA 2004)
indicates that a party’s attorney fee retainer agreement billing and
payment records are not privileged

8. JOINT DEFENSE
AGREEMENTS
Their respective
clients have
interests in
common and may
assert common
defenses or
claims

9. JOINT DEFENSE
AGREEMENTS
Specifically, in the event
that Counsel or his
Counsel agree
client receives a
that, if at any
subpoena from any
time their
person……
client shall no
longer have
Such Counsel shall
interests in
immediately notify all
common with
Counsel…
the other
parties to this
Shall not surrender and
agreement,
Defense material
they shall
without permitting all
promptly notify
affected Counsel an
the other
opportunity to protect
parties to this
their respective
agreement of
interests by motion in
that fact
court

10. JOINT DEFENSE
AGREEMENTS
Does not
prevent
counsel for any
party to this
Agreement
from cross-
examining any
other party to
this Agreement
should that
party be a
witness in any
capacity at any
criminal
prosecution in
this matter

11. JOINT DEFENSE
AGREEMENTS
Executed by all
attorneys

12. CHILD HEARSAY
 Statements of child victims codified in Section 90.803(23)
states:
 out of court statement
 made by a child victim with the physical, mental, emotional or
developmental age 11 or less
 describing any act of child abuse, neglect, sexual abuse against a
child, or any offense involving an unlawful sexual act,
 not otherwise admissible,
 is admissible in evidence in any civil or criminal proceeding if:

13.  The court finds in a hearing conducted outside the
presence of the jury
 that the timing, content, and circumstances of the
statement provide sufficient safeguards of reliability.
 In making of the determination, the court may
consider
 the mental and physical age and maturity of the child,
 the nature and duration of the abuse of offense,
 the relationship of the child to the offender,
 the reliability of the assertion,
 the reliability of the child victim,
 and any other factor deemed appropriate; and

14.  The child either:
 A. Testifies; or
 B. Is unavailable as a witness,
provided that there is other corroborative
evidence of the abuse or offense.
 Unavailability requires a finding by the court that
the child’s participation in the trial or proceeding
would result in a substantial likelihood of severe
emotional or mental harm.

15.  Townsend v State, 635 So 2d. 949 (FLA 1994)
 non-exclusive list for the trial court to consider in evaluating the
reliability of a child’s out of court statements under the statute
including:
1. consideration of the statement’s spontaneity;
2. Whether the statement was made at the first available
opportunity following the alleged incident;
3. Whether the statement was elicited in response to a question from
adults;
4. The mental state of the child when the abuse was reported;
5. Whether the statement consisted of a childlike description
of the act; and
6. Whether the child used terminology unexpected of a child
of similar age.

16.  Perez v. State, 536 So 2d. 206 (FLA. 1988)
 the time that the out of court statement was made relative to the time of the incident
charged and the circumstances of the statement are crucial to determination of reliability.
 State v. Campbell, 664 So 2d. 1085 (FLA. 5th DCA 1995)
 specifically excludes from evidence child hearsay statements that describe abuse on a
person other than the declarant child.
 Pardo v. State, 596 So 2d. 665 (FLA. 1992)
 both the child and the person to whom the child made the hearsay declaration may
testify.
 Kopko v. State, 577 So. 2d. 56 (FLA. 5th DCA 1991)
 at least one repetition of child hearsay is permissible “if the child testifies.”
 repetitious child hearsay from multiple witnesses is unfair to a defendant and contravenes
the longstanding rule prohibiting the admission of prior consistent statements to bolster a
victim’s in court testimony.

17. CONFRONTATION
CLAUSE
 Crawford v. Washington, 124 S.Ct. 1354 (2004)
 states that the protections set forth in the
confrontation clause of the 6th Amendment cannot be
overlooked. The Supreme Court indicated that
permitting testimony based on the amorphous
concept of reliability without taking into account the
constitutional requirement of confrontation that the
statement be subject to cross-examination was
erroneous.The court indicated that even if the right to
confrontation under the 6th Amendment is not solely
concerned with testimonial hearsay, that the primary
object, and interrogations by law enforcement
officers fall squarely within that class.

18. §92.53
Videotaping of testimony
of victim or witness under age 16
or person with mental retardation.

19. §92.54
Use of closed circuit television
in proceedings involving victims or
witnesses under the age of 16 or
persons with mental retardation

20. 5th AMENDMENT
 CANNOT compel incriminating testimony from a person who is in criminal
jeopardy.
 Corporations DO NOT have a 5th Amendment privilege, but individuals within the
corporation MAY
 Corporate document not afforded 5th Amendment protection
 Individual officers cannot be compelled to testify about their own actions on behalf
of the Corporate if their actions may be criminal.
 CANNOT elicit the fact that person asserted their 5 th Amendment privilege in a
CRIMINAL CASE
 CAN elicit the fact that person asserted their 5 th Amendment privilege in CIVIL
CASE

21. QUESTIONS?
Pinellas: 727-441-9030
Tampa: 813-223-6495
Web: www.greeklaw.com