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Florida 2nd District Court of Appeal holds that in camera review is required before court can require privileged documents to be produced

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Florida Second District Court of Appeal granting a petition for writ of certiorari quashing a discovery order compelling the production of allegedly privileged documents without first conducting an in camera inspection todetermine whether the privilege applies. The opinion is Patrowicz v. Wolff, — So.3d —-, 2013 WL 1352488 (Fla. 2d DCA April 05, 2013).  The opinion is

In this case, the lawyer was an estate planner for the decedent and counsel for the personal representative of the estate and was served with a subpoena for his records as the non-party estate planner, not as probate counsel.  The lawyer objected and the court ordered that the documents be produced without reviewing the documents in camera.  The lawyer filed a petition for writ of certiorari to the 2nd District Court of Appeal.

The 2nd DCA granted the petition and quashed the trial court’s order.  According to the opinion, which was authored by Judge Khouzam, “(a) trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari.” Bennett v. Berges, 84 So.3d 373, 374-75 (Fla. 4th DCA 2012). A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure. Id. at 375. This is equally true where the subpoena on its face requests communications between attorney and client. See Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002). The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law. See Snyder v. Value Rent–A–Car, 736 So.2d 780, 782 (Fla. 4th DCA 1999).”

“(T)he reason we must quash the order is that the trial court ordered production of the documents without first reviewing them and determining whether the attorney-client privilege applied. Not only did (the lawyer) specify that his objection was based on the attorney-client privilege, but the subpoena on its face explicitly requested communications between an attorney and his client. Consequently, the trial court was required to conduct an in camera inspection of the documents prior to ordering their disclosure. We therefore quash the order compelling the production of the documents and remand the case for further proceedings.”

In Bennett v. Berges, the 4th DCA stated that the trial court properly ordered an in camera review of the relevant documents claimed to be privileged; however, it denied the petition for writ of certiorari as premature.  “After an in camera inspection, the trial court may determine that the documents are privileged and uphold Petitioners’ objection to the discovery request. Accordingly, because the order requires a party to submit allegedly protected materials only for an in camera inspection, and the trial court may never require disclosure of the documents to the opposing party, we hold that the petition is premature (citing cases).  Whether the trial court has misapprehended the scope of the privilege is a question we need not decide because to date, no discovery has been ordered. Accordingly, the petition is denied.”

Bottom line:  If the lawyer does not believe that the confidential file should be provided, he or she should object to the subpoena and insist on an in camera review, which is required under Patrowicz v. Wolff.  The duties and obligations of an estate planning lawyer when the confidential file is subpoenaed in estate litigation are addressed in Florida Bar Advisory Ethics Opinion 10-3, which I have addressed in previous Ethics Alerts and in seminars.  The advisory opinion is attached and should be carefully examined and followed by any lawyer who may have to address this issue.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

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    Your advice to object to the subpoena and insist on in camera review seems sound but under current case law must the attorney claiming attorney-client privilege also request in camera review by the court or is a mere object based on attorney-client privilege sufficient? It seems that it would be as it would then be up to opposing counsel or the court to require in camera review.

    Thanks for your comment, Tim. To be clear, without providing legal advice, I would not necessarily insist on in camera review immediately; however, if the judge is contemplating requiring that the privileged/confidential documents be produced without in camera review and the lawyer has grounds to object to the production, the lawyer should then insist on the in camera review.

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