Tag Archives: statutory attorney/client privilege

Florida Supreme Court finds that attorney-client privilege prohibits inquiries into lawyer/doctor referral relationships

Hello everyone and welcome to this Ethics Alert which will discuss the important very recent Florida Supreme Court opinion which prohibit inquiries by defense counsel into referral relationships between the plaintiff’s law firm and a physician.  The case is Worley v. Central Florida Young Men’s Christian Ass’n, Inc., No. SC15-1086 (Fla. SC April 13, 2017).  The Florida Supreme Court opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc15-1086.pdf

The Florida Supreme Court considered the case because of a certified conflict under art. V, § 3(b)(4), Fla. Const. in the opinions of the Fifth District Court of Appeal (in this case) and the Second District Court of Appeal (in Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992).

According to the opinion, Heather Worley was a plaintiff in a lawsuit against YMCA after she allegedly fell in a Florida YMCA parking lot.  Worley was represented by Morgan & Morgan.  At Worley’s depositions, YMCA’s lawyer asked if she was referred to her specialists by her attorneys and Worley’s lawyer objected on the ground that the information was attorney-client privileged.

YMCA then served interrogatories directed to specific doctors employed by three medical providers with whom Worley treated and also served a supplemental request to produce to Morgan & Morgan, to attempt to establish the existence of a referral relationship between Morgan & Morgan and the treating physicians.  The opinion states that “(t)hese efforts were based on YMCA’s suspicions that there was a ‘cozy agreement’ between Morgan & Morgan and the physicians, due to the amounts of Worley’s medical bills.”

Worley objected (through Morgan & Morgan) and stated that the discovery requests were “overbroad, vague, unduly and financially burdensome, irrelevant and in violation [of] allowable discovery pursuant to Florida Rule of Civil Procedure 1.280(b)(4).”  She also contended that Morgan & Morgan does not maintain “information for treating physicians as in this matter, or otherwise.”

At a hearing on Worley’s objections, “the trial court only sustained Worley’s objection to the question regarding whether she was referred to the doctors by her attorneys and ‘did not address Worley’s objections to YMCA’s other outstanding discovery requests at that time.’”  The Fifth DCA upheld the lower court’s order and relied on Florida district court decisions which held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable if evidence of a referral relationship can be shown.  Those cases relied upon the Florida Supreme Court’s decision in Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999).

In its 4-3 decision, the Court rejected the application of Boecher and found that the defense attorneys were prohibited from inquiring about the referral relationships between plaintiff’s firm, Morgan & Morgan, and Sea Spine Orthopedic Institute stating that “(a)llowing further discovery into a possible relationship between the physician and the plaintiff’s law firm would only serve to uncover evidence that, even if relevant, would require the production of communications and materials that are protected by attorney-client privilege.”  “We do not agree with the Fifth District’s attempt to circumvent the attorney-client privilege out of perceived necessity. The attorney-client privilege is the oldest confidential communication privilege known in the common law.”

“Even in cases where a plaintiff’s medical bills appear to be inflated for the purposes of litigation, we do not believe that engaging in costly and time-consuming discovery to uncover a “cozy agreement” between the law firm and a treating physician is the appropriate response. We are concerned that this type of discovery would have a chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation themselves. Moreover, we worry that discovery orders such as the one in this case will inflate the costs of litigation to the point that some plaintiffs will be denied access to the courts, as attorneys will no longer be willing to advance these types of costs. Finally, attempting to discover this information requires the disclosure of materials that would otherwise be protected under the attorney-client privilege.”

The Supreme Court opinion quashed Fifth DCA’s decision permitting the discovery and approved the decision of the Second DCA.

Bottom line: This case is important since it addresses and appears to settle the question of whether the defense in a personal injury case (or any case) can use discovery to attempt to determine if there is a “cozy” relationship between the plaintiff’s law firm and treating medical providers.  The opinion found that the information sought was protected by the attorney/client privilege, §90.502(2), Fla. Stat., and that the discovery was prohibited.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under .S. Supreme Court, attorney/client privilege, Attorney/client privilege and confidentiality, Attorney/client privilege discovery of referral relationships with doctors, Confidentiality and privilege, joe corsmeier, Joseph Corsmeier, Lawyer ethics duties re subpoena for client confidential documents and information, prohibition of inquiries into lawyer/doctor referrals

Lawyer-Client Confidentiality and Privilege: What is the Difference?

This Ethics Alert blog will discuss the terms lawyer-client confidentiality and lawyer-client privilege are often used interchangeably and the differences between them may become somewhat blurred.  Although both terms address information related to the client that a lawyer cannot reveal and both are used primarily to protect the client’s ability to confide freely with the lawyer, they are not synonymous.  There are several significant differences with regard to their scope, exceptions, and application.

The primary ethics rule addressing lawyer-client confidentiality in Florida Bar Rule 4-1.6, which is substantially similar to ABA Model Rule 1.6.  The Comment states that “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…” A violation of the Bar rule may result in disciplinary sanctions.

Absent an exception, confidential information remains confidential during the representation and after the client dies.  The lawyer should not reveal confidential information if it will injure the client’s interests (absent an exception or legal compulsion), and it should only be disclosed to advance those interests.

A client may give informed consent for the lawyer to reveal confidential information or information that is protected by the privilege and consent may be implied under certain circumstances.  The client must give consent to the waiver of confidentiality; however, the privilege may be inadvertently and impliedly waived by the failure to object to testimony about the privileged communications.

In contrast to privilege, the lawyer’s ethical duties regarding confidentiality are much more extensive in scope and application, particularly as to what information is protected.  Confidentiality applies not only to information received from the client but all information related to the representation, regardless of whether the information came from the client or another source.  In addition, confidentiality applies in all situations, not just in litigation.

The lawyer-client privilege is a litigation concept that arose from the principles of evidence. In Florida, the privilege is set forth in F.S. 90.502.  The client, or someone acting legally for the client, may claim the privilege, typically through the lawyer.  F.S. 90.502(e) states that a lawyer is presumed to have the authority to assert the privilege on behalf of the client.  The privilege only protects communications between the client and lawyer in a litigation context, the communications are not protected if available from another source, and the communications are not necessarily protected simply because of the communication to the lawyer.  The Comment to Bar Rule 4-1.6 states “(t)he attorney-client privilege and work-product doctrine apply in judicial and other proceedings…”

The “crime-fraud” exception to the privilege in F.S. 90.502(4)(a) permits the disclosure of information communicated to the lawyer if the client attempts to use the lawyer’s services to commit or cover up a crime or fraud.

Florida Bar Rule 4-1.6(b) requires disclosure of confidential information to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another.  This mandatory exception is different from the crime-fraud exception to privilege in that it requires the threat of substantial injury or death to require that the information be revealed.  There are other exceptions under Bar Rule 4-1.6(c) which permit (but do not require) disclosure by the lawyer.

Even if information is not covered by privilege, it may still be confidential.  Depending on the circumstances, a lawyer may also be compelled to reveal the information regardless of whether it is privileged or confidential.

Bottom line:  Although the use of the terms “lawyer-client confidentiality” and “lawyer-client privilege may often be used interchangeably, they are very different in concept, scope, and application.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and 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.

29605 U.S. Highway 19 N., Suite 150,

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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