FORT LAUDERDALE BUSINESS LITIGATION: CORPORATE ATTORNEY CLIENT PRIVILEGE

The attorney-client privilege protects confidential communications between a lawyer his or her client. Jenney v. Airdata Wiman, Inc., 846 So. 2d 664 (Fla. 2d DCA 2003). In Florida, a client’s right to protect communications with his or her counsel comes from two sources. Coffey-Garcia v. S. Miami Hosp., Inc., 194 So. 3d 533 (Fla. 3d DCA 2016). Each has somewhat different standards. The right of attorney client privilege, which relates to judicial and administrative hearings, is governed by Florida’s Evidence Code. The rule of client-lawyer confidentiality, which relates to communications occurring outside judicial and administrative hearings, is governed by Rule Regulating the Florida Bar. R. Reg. Fla. Bar 4–1.6 cmt. (“The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer though compulsion of law.”). The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

“A communication between a lawyer and client is [protected by the attorney client privilege] if it is not intended to be disclosed to third persons.” Fla. Stat. § 90.502. However, the standard for asserting attorney client privilege over corporate communication is more stringent. A corporation must prove its “communication would not have been made but for the contemplation of legal services; … the content of the communication relates to the legal services being rendered;” and “the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.” 1550 Brickell Assocs. v. Q.B.E. Ins. Co., 253 F.R.D. 697 (S.D. Fla. 2008); Fla. R. Civ. P. 1.280 (“The burden to establish the existence of a privilege is on the party asserting the privilege.”). The primary purpose of the communication must have been the acquisition of legal advice rather than business advice. Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684 (S.D. Fla. 2009). Therefore. legal advice must predominate the communication. See Carpenter v. Mohawk Indus., Inc., 2007 WL 5971741 (N.D. Ga. Oct. 1, 2007); Hasty v. Lockheed Martin Corp., 1999 WL 600322 (E.D.La. Aug. 6, 1999) (“[T]he business aspects of [a corporate] decision are not protected simply because legal considerations are also involved;” and, “in those cases where the document does not contain sufficient information to indicate whether the material was considered confidential, that material should not be privileged.”).

Attorney client privilege will not be eliminated merely because it contains some business-related considerations. Eglin Federal Credit Union v. Cantor, Fitzgerald Sec. Corp., 91 F.R.D. 414 (N.D. Ga. 1981) (“The mere mention of business considerations is not enough to compel the disclosure of otherwise privileged material …. Legal advice should remain protected along with “nonlegal considerations” discussed between client and counsel that are relevant to that consultation.”). For example, in Preferred Care Partners Holding Corp. v. Humana, Inc., an email was generated in the context of a proposed merger, and legal advice was provided regarding certain antitrust issues surrounding the merger to determine whether the merger would pass regulatory muster if consummated. 258 F.R.D. 684. The court determined the communication was protected by the attorney client privilege because the dominant issue in the communication was the anti-trust legal advice, not the merger.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.