ABSTRACT: In general, no party in a legal proceeding can refuse to be a witness; refuse to disclose any matter; refuse to produce any object or writing; or prevent another from doing the same unless there is a legally recognized privilege.  The privileges recognized by the Florida evidence code are: Lawyer/Client privilege; Psychotherapist/Patient privilege; Sexual Assault Counselor/Victim privilege; Domestic Violence Advocate/Victim privilege; Husband/Wife privilege (which is not applicable in a dissolution proceeding); Clergy/Parishioner privilege; and Accountant/Client privilege.  Each section is specific as to what does and does not constitute privileged information and whom may claim the privilege.  Trade secrets may also be subject to privilege as long as their protection does not conceal fraud or cause other injustice.  Once the privilege protecting communications is waived, the privilege may no long be claimed as to that information.  If privileged information is erroneously disclosed it may not be used against the party that has the privilege.  Communications that were privileged at the time they were made maintain their privileged nature, even though they are not currently recognized by the evidence code.  The court may dismiss a claim for relief or affirmative defense that is based upon another parties privileged information.  The court may consider the information in camera to determine whether to dismiss the claim or defense.

Statutes:

Fla. Stat. 90.501-Privileges recognized only as provided: No party in a legal proceeding can refuse to be a witness; refuse to disclose any matter; refuse to produce any object or writing; or prevent another from being a witness, disclosing a matter, or producing an object or writing unless it is subject to a privilege recognized under the evidence code, any statue, or the state or U.S. Constitution.

Fla. Stat. 90.501-Lawyer/Client privilege:

• Definitions:
  
  
  • A lawyer is any person who is authorized or who the client reasonably believes to be authorized to practice law.
  • A client is a party who is rendered legal services by a lawyer
  
  
  • A communication is confidential if it is not intended to be disclosed to third persons other than those who disclosure is made in furtherance of the rendition of legal services to the client, or those reasonably necessary for transmission of the communication.
  
  
  • Client is the party with the privilege to refuse to disclose, or prevent the disclosure of confidential communications
  
  
  • The privilege may be claimed by the client, a guardian of the client, a representative of the client, the lawyer (privilege is presumed in the absence of contrary evidence
  
  
  • Lawyer client privilege does not exist when:
    
    
    • Services were sought or obtained to enable or aid someone to commit or plan to commit a crime or fraud
    
    
    • communication is relevant to an issue between parties who claim through the same deceased client
    
    
    • communication that is relevant to a malpractice claim.
    
    
    • Communications relating to the competence or intention of a client when attesting to a document when the lawyers is an attesting witness to the signing of the document.
    
    
    • Communications made to co-clients.
    
    
    • Communications made to the department of revenue attorney when  a person is seeking services are confidential.
    
    
    • Discussions or activities that are not part of a public meeting pursuant to Fla. Stat. 286.011 are not construed to waive the privilege.

Fla. Stat. 90.503-Psychotherapist/Patient privilege:

• Definitions:
  
  
  • Psychotherapist is:
    
    
    • person authorized to practice medicine in any state or nation that a patient reasonably believes to be engaged in the diagnosis or treatment of mental or emotional conditions including alcoholism and drug addiction
    • person licensed as a psychologist
    
    
    • a licensed or certified clinical social worker, marriage and family therapist, or mental health counselor
    
    
    • treatment personnel at licensed state facilities who are engaged in the diagnosis or treatment of mental or emotional conditions.
    
    
    • registered nurse practitioners whose primary scope of practice is the diagnosis or treatment of mental or emotional conditions

• Patient is a person who seeks treatment from one of the above listed individuals for mental or emotional health issues.

• Communications between psychotherapists and patients are confidential if they are not intended to be disclosed to third persons other than:
  
  
  • Those persons presence is necessary to further treatment
  
  
  • Persons necessary to further communication regarding treatment
  
  
  • persons participating in diagnosis and treatment
  
  
  • Patient has the privilege to refuse to disclose or to prevent another from disclosing confidential information made for the purposes of diagnosis or treatment of a patients mental or emotional condition.
  
  
  • The privilege may be claimed by:
    
    
    • Patient or patients attorney on patients behalf
    
    
    • guardian of the patient
    
    
    • personal representative of a deceased patient
    
    
    • the psychotherapist, but only on behalf of the patient
    
    
    • No privilege exists:
      
      
      • For communications relevant to a proceeding to compel hospitalization of a patient for mental or emotional health conditions
      
      
      • Communications made in the course of court-ordered examination of the mental or motional condition of the patient
      
      
      • communications relevant to an issue of mental health when the patient using the condition as a defense, or in any proceeding in which a party relies upon the condition as an element of the party’s claim or defense

Fla. Stat. 90-5035- Sexual Assault counselor/victim privilege:

• Definitions:
  
  
  • Rape crisis center is a public or private agency that offers assistance to victims or sexual assault or sexual battery and their families
  
  
  • sexual assault counselor is any employee of a rape crisis center who renders advice, counsels or assists victims of rape
  
  
  • Trained volunteer is a person who volunteers at the rape crisis center who assists victims of rape
  
  
  • victim is a person who consults a sexual assault counselor or trained volunteer to secure help as a result of sexual assault
  
  
  • communications between the counselor and the volunteer are confidential if they are not intended to be disclosed to third persons other than:
    
    
    • those necessary to further the interests or treatment of the victim
    
    
    • those necessary for transmission of the communication
    
    
    • those necessary to accomplish the purposes that the counselor or volunteer is consulted regarding
    
    
    • Victim has privilege to refuse to disclose or prevent another from disclosing communications made for treatment for sexual assault
    
    
    • Privilege may be claimed by:
      
      
      • Victim or victims attorney
      
      
      • guardian of the victim
      
      
      • personal representative of the deceased victim
      
      
      • sexual assault counselor or trained volunteer only on behalf of the victim

Fla. Stat. 90.5036- Domestic Violence Advocate/Victim privilege:

• Definitions:
  
  
  • domestic violence center  is a public or private agency that offers assistance to victims of domestic violence
  
  
  • domestic violence advocate is an employee or volunteer  for a program for victims of domestic violence whose primary purpose is rendering advice, counseling, or assistance to victims of domestic violence
  
  
  • victim is a person who consults a domestic violence advocate for securing advice, counseling, or assistance concerning issues resulting from domestic violence.
  
  
  • A communication between a domestic violence advocate and a victim is confidential if it relates to the incident of domestic violence for which the victim is seeking assistance and if it is not intended to be disclosed to third persons other than:
    
    
    • persons present to further the interests of the victim in seeking treatment
    
    
    • persons whom disclosure is reasonably necessary to render aid to the victim as a result of the domestic violence.
    
    
    • victim has the privilege to refuse to disclose or prevent another from disclosing confidential information provided by the victim when seeking assistance for domestic violence.
    
    
    • privilege may be claimed by:
      
      
      • victim or the victims attorney on the victims behalf
      
      
      • a guardian of the victim
      
      
      • the personal representative of the deceased victim
      
      
      • the domestic violence advocate only on behalf of the victim

Fla. Stat. 90.504- Husband/Wife Privilege:

• spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing communications that are intended to be made in confidence between the spouses while they were husband and wife

• Privilege may be claimed by either spouse, or the guardian of the spouse

• The privilege does not exist when:
  
  
  • The proceeding is brought by one spouse against the other
  
  
  • In a criminal proceeding where one spouse is the victim of the other
  
  
  • In a criminal proceeding where the communication is offered by the defendant spouse who is one of the spouses between whom the communication is made

Fla. Stat. 90.505- Privilege with respect to communications to clergy:

• Definitions:
  
  
  • A member of the clergy is essentially anyone recognized as a religious leader, or anyone reasonably believed to be
  
  
  • communications between a member of the clergy and a person is confidential if made privately for the purpose of seeking spiritual counsel and advice form the member of the clergy as party of the clergyman’s duties and is not intended for further disclosure except to other persons present in furtherance of the communication.
  
  
  • A person has a privilege to refuse to disclose, and to prevent another from disclosing confidential communications from the person to a member of the clergy while the clergyman is acting as a spiritual advisor.
  
  
  • Privilege may be claimed by:
    
    
    • the person
    
    
    • the guardian of the person
    
    
    • the personal representative of the deceased person
    
    
    • the clergy member on behalf of the person.

Fla. Stat. 90-5055- Accountant/Client privilege:

• Definitions:
  
  
  • an accountant is a certified public accountant or a public accountant
  
  
  • a client is a person seeking accounting services from an accountant
  
  
  • communications between an accountant and the client is confidential if it is not intended to be disclosed to third persons other than those necessary for rendering accounting services, or necessary to transmit communication regarding the accounting services
  
  
  • Client can refuse to disclose or prevent another from disclosing confidential communications to their accountant
  
  
  • privilege may be claimed by:
    
    
    • the client
    
    
    • a guardian of the client
    
    
    • personal representative of the deceased client
    
    
    • A successor of the client’s interest
    
    
    • The accountant on behalf of the client
    
    
    • No privilege exists when
      
      
      • services were sought for assistance in committing a crime or a fraud
      
      
      • information is relevant in a malpractice suit
      
      
      • communication to co-clients in a suit between the clients

Fla. Stat. 90.506- Privilege with respect to trade secrets: Person can prevent disclosure of a trade secret if the allowance of the privilege will not conceal fraud or otherwise work injustice.  When a court directs disclosure it will take protective measures to protect the holder of the privileges interests.  Privilege may be claimed by the person or the person’s agent or employee.

Fla. Stat. 90.507 Waiver of privilege by voluntary disclosure: Person who holds a privilege lose the privilege when they voluntarily disclose the privileged information.

Fla. Stat. 90.508- Privileged matter disclosed under compulsion or without opportunity to claim privilege: Evidence of privileged information is inadmissible against the holder of the privilege if the disclosure was erroneously compelled without an opportunity to claim privilege.

Fla. Stat. 90.509- Application of privileged communications: Information that is not included in the evidence code is privileged if there was a legally recognized privilege at the time the communication was made.

Fla. Stat. 90.510- Privileged communications necessary to adverse party: In any civil case in which a party claims privilege as to a necessary communication for an adverse party the court may dismiss the claim for relievf or the affirmative defense for which the privileged testimony would relate.  Court may hear the alleged privileged information in camera to determine whether or not to dismiss the claim or defense.

Case Law:

Daly v. Daly, 624 So.2d 304 (Fla. 4^th DCA 993)

• Facts:
  
  
  • Several days after filing a petition for dissolution, the husband was arrested and charged with attempted murder
  
  
  • It was alleged at his first appearance that he shot the other man after they had been drinking and using cocaine together
  
  
  • As a condition of the husband’s bond, he was required to undergo inpatient substance abuse treatment at the National Recovery Institute
  
  
  • Wife sought production of his medical records related to his treatment because she believed they were relevant to the custody of their children
  
  
  • husband objected, but the court denied his objection and required him to produce the records
  
  
  • Findings:
    
    
    • Court found that the husband waived his privilege based on the combination of his claim for custody, and his concurrent inpatient treatment after being arrested for attempted murder
    
    
    • Relied upon the following cases:
      
      
      • Miraglia v. Miraglia, 462 So.2d 507 (Fla. 4^th DCA 984)
        
        
        • a dissolution case in which both parents were seeking primary custody, the court refused to admit the testimony of the wife’s psychiatrist even though she had attempted suicide while the case was pending.
        
        
        • Appellate court reversed and found that the testimony should have been admitted because the suicide attempt made her mental health and issue because it occurred during the pendency of the case.
      
      
      • Critchlow v. Critchlow, 347 So.2d 453 (Fla. 3d DCA 1977)
        
        
        • Wife sought voluntary hospitalization for mental treatment after filing the petition for dissolution.
        
        
        • Third DCA held that there was no privilege as to the communications, diagnosis and treatment relative to the wife’s fitness as a mother

By Kenny Leigh