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Privileges

privileges

Privileges in Florida is governed entirely by statute, and Section 90.501, Florida Statutes, indicates that it is the legislature and not Florida’s judiciary that is empowered to create or aggregate recognized privileges.  However, this statement does not affect privileges premised on either the Federal or Florida Constitution. Accordingly, all applicable privileges are included in the Florida Evidence Code.

Despite the existence of certain privileges in the Florida Evidence Code, Section 39.204, aggregates the applicability of most of those privileges if the communication involves child abuse, abandonment, or neglect.  The Statute provides: “The privileged quality of communication between husband and wife and between any professional person and his or her patient or client and any other privileged communication except that between attorney and client … shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect.”

However, the applicability of this section does not entitle a party “to embark upon questions or an investigation of communications or records which are not related or relevant to ‘child abuse, abandonment, or neglect.’”

Husband-Wife Privilege

While Florida does recognize a husband-wife privilege, these statutes specifically remove the privilege from proceedings between spouses or in criminal proceedings where one spouse is charged with a crime against the other spouse or a child abuse spouse.  Thus, there is no husband-wife privilege in dissolution, domestic violence, or child abuse cases.

Lawyer-Client and Work Product  

Generally, neither the attorney nor the client may be compelled to disclose communications between them that were confidential and made in the rendition of legal services to the client.  A person obtains the status of a client by consulting an attorney for the purpose of obtaining legal advice. Whether the person seeking legal advice subsequently retains the attorney is irrelevant.

Psychotherapist-Patient 

Communications and records made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, are privileged.  However, there is no such privilege for communications made in the course of a court-ordered examination of the mental or emotional condition of the patient. Further, “there is no privilege … for communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense.”

The parties seeking otherwise privileged information bears the burden of showing that the patient has placed his or her mental condition an issue.  In order to determine whether that burden was met, the trial court should first hold an evidentiary hearing on the issue. However, it is well established that instead of “ordering disclosure, the suggested procedure is to order a new psychiatric or psychological examination, thus balancing the court’s need to determine the parent’s mental health as it relates to the best interest of the child, and the need to maintain the confidentiality between a treating psychotherapist and the patient.”

In a child custody dispute, the mental and physical health of both parents is a factor that must be considered by the trial judge in determining the best interest of the child.  This does not mean that a spouse places his or her mental health in issue allowing a resulting waiver of psychotherapist-patient privilege, merely by seeking child custody. Further, “mere allegations of mental or emotional instability are insufficient to place the custodial parent’s mental health at issue as to overcome the privilege.”  By the same token, the custodial parent’s denial of allegations of mental instability does not act as a waiver of the psychotherapist-patient privilege. “To hold otherwise would eviscerate the privilege; a party seeking privileged information would obtain it simply by alleging mental infirmity.”

A party places their mental health an issue so as to abrogate their right to claim the psychotherapist-patient privilege “only in situations where calamitous events such as an attempted suicide occur during a pending custody dispute.”

However, a party cannot use privilege as both a sword and a shield, that is, by seeking affirmative relief on the one hand while hiding behind the privilege on the other.

Like an adult, “a child has a privilege in the confidentiality of her communications with her psychotherapist.  Where the parents are involved in litigation themselves over the best interests of the child, the parents may not either assert or waive the privilege on their child’s behalf.”  A mature child can also assert the psychotherapist-patient privilege against a guardian ad litem in a dependency case.

Also encompassed under the psychotherapist-patient privilege are joint marriage counseling sessions that are not court ordered.

Accountant-Client

Florida Statute recognizes a privilege for confidential communication with an accountant made in the rendition of accounting services to the client.  “A court cannot justify finding a waiver of the privilege merely because the information sought is needed by the opposing party to provide information helpful to cross-examination or for the defense of a cause of action.”  However, “financial records and data which are not privileged in the hands of the client cannot be shielded from discovery deposition or subpoena by transferring them to the client’s accountant.”  Thus, a party cannot shield legitimate financial disclosure by turning over the relevant financial records and data to his accountant and therefore have his accountant assert the accountant-client privilege so as to block any deposition or subpoena duces tecum of the accountant.  In order to determine whether the accountant-client privilege applies to a communication, the trial court must hold an evidentiary hearing.

Kenny Leigh and Associates is a law firm that exclusively represents men in the area of family law.  For more information, go to divorcemenonly.com.

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