The Florida Bar
The Florida Bar Journal
July/August, 2013 Volume 87, No. 7

Page 6

Public Defenders
Mr. Rhoden’s letter (May) criticizes public defenders for failing to reduce their caseloads and collect fees from clients. He fails to acknowledge that the clerks of court, not the public defenders, are statutorily charged with determining indigency, and trial judges are charged with appointing the public defender to criminal cases. Public defenders do at times make motions to be removed from cases when we believe our clients are not indigent. See, e.g., Haughwout v. Mellor, 870 So. 2d 895 (Fla. 4th DCA 2004) (PD removed because defendant owned real property and had previously retained private counsel).

Similarly, the clerks are charged with collecting public defender fees, not public defenders. And public defenders do not have the authority to create collections courts; only the judiciary and local court administrators can create them. In fact, through a partnership with the clerks and courts, public defender clients have paid over $16 million in fees and defense costs since PD fees were mandated in the 1990s.

Finally, the letter accuses public defenders of being a “fierce competitor” for cases. To the contrary, the public defenders of our state would welcome lower caseloads. No public defender believes that we should represent a client who has the means to pay for a private attorney.

Julianne M. Holt, Public Defender, 13th Judicial Circuit
President, Florida Public Defender Association

Privileged Claims Files
The authors of “Picking Cotton: Ordinary Business Records Doctrine as Applied to Insurer’s Privilege Claims” (May 2013) advocate the holding in Cotton States Mut. Ins. Co. v. Turtle Assoc., Inc., 444 So. 2d 595 (Fla. 4th DCA 1984), as the better approach to issues of privilege in production of insurer claims files in first-party coverage cases. As an attorney working primarily in first-party insurance defense, I have been arguing for many years that the claims files are privileged during litigation, and remain so even after litigation ends.

The problem with the proposition made in the article is that Cotton States does not apply to a first-party coverage action. Many, if not all, of my opposing attorneys rely heavily on Cotton States when attempting to obtain production of my clients’ files. The Fourth District, however, clarified Cotton States, which the authors fail to mention.

Four years ago the Fourth District wrote that Cotton States involved a bad faith claim, not a first-party coverage claim. Neighborhood Health Partnership, Inc. v. Peter F. Merkle, M.D., P.A., 8 So. 3d 1180 (Fla. 4th DCA 2009). Anyone with some knowledge of this area of the law knows that there is a tremendous difference between discovery of a claims file in a first-party breach of contract action for coverage and a bad faith action after coverage has been determined. There are different policies and reasons for maintaining the claims file privilege in coverage actions and permitting disclosure in bad faith actions, which are too complex to address in this letter.

It is surprising and disappointing that Neighborhood Health and its effect on the holding in Cotton States was either overlooked or ignored by the authors in order to promote a position that none of the district courts agree with, including the Fourth.

Andrea B. Chirls, Miami

[Revised: 06-28-2013]