Waiver of Attorney Client Privilege
Although the Attorney Client Privilege keeps what you say to your lawyer a secret, it’s not absolute. If you share the secrets, then they’re no longer protected. To help their clients, criminal defense attorneys share information with the government all the time. We share information to reduce bond, fight the charges and win lower sentences. But what happens if your lawyer shares something that waives the Attorney Client Privilege? The Third District Court of Appeal writes about waiver in Nelson, et al. v. State of Florida.
Facts of the Nelson Case
Police arrest Mr. Nelson for the Armed Robbery of Ms. Jones. According to this NBC Miami article, he robs Ms. Jones on behalf of another woman. Three days later, someone murders Ms. Jones while Mr. Nelson remains in jail. Here’s where things become curious.
Mr. Nelson tells his lawyer Mr. Saiz that Ms. Jones is dead. To help Mr. Nelson, Mr. Saiz tells the State of Florida (State) that the robbery victim died. Mr. Saiz says his client learned this on the news. He hopes this would assist in Mr. Nelson’s defense. Evidently, the news had not reported the name of the victim.
In response, the State issues a subpoena to Mr. Saiz asking to produce audio and video recordings, billing and payment records and telephone numbers. Also, it seeks to depose Mr. Saiz. Obviously, he objects claiming work product and Attorney Client Privilege.
At a hearing, the State argues that it can’t obtain this information without undue hardship. Next, it argues that Mr. Saiz waived Attorney Client Privilege by sharing this with the State. Ultimately, the judge denies his objections so he files a Writ of Certiorari. In case you want to learn more about Writs of Certiorari, check out my page on Appeals and Petitions.
Work Product and Attorney Client Privilege Waiver
The Third District agrees that Mr. Saiz can file this Writ of Certiorari. But it rules that the judge did not err compelling Mr. Saiz to turn over this evidence. At best, the State seeks “fact” work product. This information doesn’t contain mental impressions from the lawyer.
However, the Third District takes a different approach to the deposition. Because the State argues waiver, it bears the burden of proof. Additionally, the State must prove the client waived Attorney Client Privilege. Although an attorney has an implied right to waive it, the hearing did not focus enough on the facts behind the waiver. Because the record does not support the waiver, the State cannot depose Mr. Saiz. Nevertheless, the Third District writes that the State can try to prove Attorney Client Privilege waiver at another hearing.
Read the Nelson, et. al. v. State opinion here!
Talk to an Experienced Florida Criminal Defense Attorney!
Not all lawyers can handle Attorney Client Privilege issues and Writs of Certiorari. They’re very nuanced and require someone who can persuasively convey your point using the written word. Fortunately, Mr. Brown has filed appeals in State Court, Federal Court and has even argued an appeal before the Florida Supreme Court.
The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to an Mr. Brown to see if he can help you with your matter! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.
