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November 15, 2012
Bar groups come to the defense of attorney-client privilege

By Megan E. Davis
Associate Editor

Before a 16-year-old boy told his lawyers where he’d gone, he was careful to ask whether the answer would be kept confidential under their attorney-client privilege.

It wasn’t the first time he’d run away from a foster care placement and he intended to take whatever precautions he could to evade a pick-up order by the Department of Children and Families.

The boy’s attorneys assured him they wouldn’t reveal his whereabouts, and when questioned in an 11th Circuit Court, they made good on that promise.

When the judge struck down a motion by DCF to compel the lawyers to reveal the boy’s whereabouts, DCF appealed to a higher court.

By the time the case appeared on the Third District Court of Appeal’s docket, DCF had already located the boy.

The Third DCA dismissed the case as moot, but not before a cross section of Florida lawyers and representatives of child advocacy groups spoke up to defend the boy’s attorney-client privilege.

Among numerous amicus briefs filed in the case was one cosigned by 15 past Bar presidents, the Bar’s Public Interest Law Section, Trial Lawyers Section, and Legal Needs of Children Committee. The Bar’s Family Law Section also filed its own brief.

Both briefs denounce DCF’s reasoning that the information the boy shared with his attorneys doesn’t fall within the guidelines of attorney-client privilege outlined in Florida law and express concerns about how granting DCF’s motion could impact other court cases throughout the state.

The briefs argue that the few exceptions the Legislature made to the attorney-client privilege don’t apply in this case and that it’s not within the judiciary’s purview to create new exceptions.

“It is the province of the Florida Legislature and not the courts to make the policy decision to create an additional exception to the oldest, strongest privilege at common law,” the Family Law Section’s brief said.

In an order denying DCF’s motion, the trial court judge said granting it would “chill open dialogue between [the child] and his counsel.”

The briefs agree and say granting the motion would set a precedent for a wide variety of future cases, involving children and adults alike, and for other types of privileged information.

“It requires only a short logical step from that position to compelling attorneys who represent dependent adults to break confidences based on the same or similar justifications,” the past presidents’ brief said. “... The logic of invading on a case-by-case, judge-by-judge, basis the attorney-client privilege, in ways the Legislature did not authorize, for the best interest of a child or the state’s asserted paternalistic concerns about protecting the safety of the client, would not be limited to the attorney-client privilege. Such logic would extend to other privileges … such as the psychotherapist-patient privilege.”

The precedent set would discourage clients from speaking freely and openly with their attorneys, which is what the attorney-client privilege seeks to promote, both the trial court’s order and the briefs say.

“Without assurances, a client would surely hold back indelicate or embarrassing facts, would not express fears or concerns, and would shrink from and distrust the legal system, which is designed to protect rights and instill trust,” the past presidents’ brief noted.

The order and briefs also argue against DCF’s notion that granting the motion would have been “in the best interest of the child” and necessary for his safety and well-being.

“An order compelling disclosure may result in this child’s immediate detention, a short-term comfort as the court has no doubt that [the child] … will almost certainly elope again and never disclose his next location to his lawyers,” the trial court’s order said. “Given this practical reality, one can compellingly argue that the law should respect the child’s confidentiality and thus encourage him as well as other dependent children to make full disclosure to their counsel … we are far better off in a situation where someone they trust is aware of their location than we are in a situation where no one is.”

Terry Fogel, one of the authors of the Family Law Section’s brief, said numerous previous cases in Florida have raised questions similar to those in this case and that she’s disappointed the Third DCA dismissed the case rather than giving definitive answers to those questions.

“The issue is going to come up again sooner or later,” she said.

[Revised: 09-30-2013]