Many of us know, whether from TV or from common sense, that whatever we say to our attorneys is absolutely privileged and confidential. With limited exception, attorneys are prohibited from ever disclosing what clients tell them. This allows clients to receive the full benefit of an attorney’s representation, as an attorney must know all the facts of a case, in order to provide full and competent counsel.
Despite this, there are still instances in which the other side in a case will try to discover communications between a client and the client’s attorney in order to gain a tactical advantage. This is especially true in injury cases, where defense attorneys often seek to undermine a victim’s injuries or undermine a victim’s retelling of the facts of an accident by trying to see what the client and attorney have said to each other.
In most cases, when the other side asks something that is privileged communication, a victim’s attorney will object, and a court will almost always uphold that objection, prohibiting the disclosure. However, there are some areas for which the law is somewhat gray. One such area has been recently clarified by the Florida Supreme Court.
Victim is Asked How She Found Her Doctors
The case involved a woman who suffered an injury in a local YMCA parking lot. She went to the hospital ER and was referred to physicians, but she did not follow up with those physicians because of money and insurance reasons.
She eventually hired an attorney to pursue her injury claim and shortly thereafter began to seek medical treatment for her injuries. Because of the apparently short period of time between her hiring her attorneys and seeking medical treatment, defense attorneys began to question the victim at her deposition about the relationship between her attorneys and her doctors. This included questioning her on whether her attorneys had referred her to her doctors.
The defendants also requested all documents showing any relationship between the attorneys and the doctors. That included any invoices or evidences of the law firm having referred any other clients to these specific doctors.
The victim’s attorney objected, but the trial court denied the objection and ordered the information be produced, leading to appeals that went all the way to the Florida Supreme Court.
Supreme Court Upholds Confidentiality
The court first noted that the victim’s law firm was not a party to the lawsuit, and thus it was improper to allow extensive discovery as to the general relationship between the attorneys and the doctors.
The court also noted that physicians who treat victims do not acquire medical knowledge to pursue lawsuits or help law firms, they do it to treat victims and make them better. If they testify in court, they do so about their own performance on individual occasions as to the individual victim. Thus, allowing discovery about the entire relationship between a law firm and doctors is overbroad. Surely, a defendant can claim that a doctor’s testimony may be biased, if that doctor has some relationship to attorneys. But the Supreme Court found that bias can be shown by other evidence that does not intrude on the attorney-client privilege.
The court stated that attorney-client privilege was “the oldest confidential communication privilege known in the common law.” Even in this case, where the defendants contended that they had no other way to uncover a relationship between the attorneys and the doctors without asking the victim if she was referred by her attorneys, that privilege could not be violated. Attorney client privilege, according to the court, does not care about the needs of a party in litigation.
Communication vs. Fact
The defendant also tried to argue that whether a victim is referred to a doctor by her attorney is a fact, not actually a communication that is entitled to confidentiality, but the court disagreed. That a victim was treated by Dr. A or Dr. B would be a fact. But information related to whether an attorney told or recommended a client to see a particular doctor, is in fact a communication, not simply a fact.
Thus, the court upheld the privilege and prohibited the defendants from asking the victim about whether her attorneys had referred her to her doctors. It should be noted that privilege only applies to actual communication between a client and an attorney. It does not apply to other fact information. For example, if a doctor’s file has a note that said “patient was referred by Lawyer Z,” or if there are letters in the doctor’s file between the doctor’s office and the lawyer, those may well be discoverable. Those do not have the same privilege, not being direct communications between a client and the attorney.
Do Not Waive Privilege
Confidentiality with attorneys belongs to clients, and they can assert it but can also lose it by waiving it. That means that victims who speak with attorneys should be careful when telling others about what their attorneys told them.
Often, victims may casually tell relatives, doctors, or employers, that “my attorneys told me…” But that could make that information public and discoverable. If those individuals are deposed, they could be compelled to tell the defendant what you told them about the communications between you and your lawyers.
Make sure your attorneys anticipate whatever the defendants will try to use against you in court, and that they protect you at every step of the process. Contact Brill & Rinaldi today about a free consultation to discuss your case.