Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 97-4069

• Decision Date: 22 July 1998
• Docket Number: No. 97-4069,97-4069
• Citation: 715 So.2d 1021
• Parties: 23 Fla. L. Weekly D1705 Joseph F. COYNE, as Trustee of Saturn Realty Trust, a Massachusetts business trust, and Saturn Realty Trust, Petitioners, v. SCHWARTZ, GOLD, COHEN, ZAKARIN & KOTLER, P.A., and Edward B. Cohen, Respondents.
• Court: Florida District Court of Appeals

Page 1021

715 So.2d 1021

23 Fla. L. Weekly D1705

Joseph F. COYNE, as Trustee of Saturn Realty Trust, a Massachusetts business trust, and Saturn Realty Trust, Petitioners, v. SCHWARTZ, GOLD, COHEN, ZAKARIN & KOTLER, P.A., and Edward B. Cohen, Respondents.

No. 97-4069.

District Court of Appeal of Florida Fourth District.

July 22, 1998.

Rehearing Denied Aug. 21, 1998.

John H. Pelzer and Paul B. Ranis of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for petitioners.

Roderick F. Coleman of Coleman & Associates, P.A., Coral Gables, for respondents.

STEVENSON, Judge.

Petitioners, Joseph F. Coyne, as Trustee of Saturn Realty Trust, and Saturn Realty Trust, seek certiorari review of an order overruling their objections to a request for production on the grounds of attorney-client privilege and the work product doctrine. We grant the petition on the ground of attorney-client privilege and quash the trial court's order of production.

Petitioners are plaintiffs in a lawsuit for legal malpractice filed against the law firm of Schwartz, Gold, Cohen, Zakarin & Kotler, P.A. and attorney Edward Cohen (hereinafter collectively referred to as "Schwartz, Gold"), based on an erroneous title certification provided to Saturn by Schwartz, Gold regarding a replat of a portion of a subdivision known as "Jupiter Key." Petitioners claim that they began construction of townhouses at Jupiter Key in reliance upon this title certification. Blue Reef Holding Corp., Inc., owner of two lots at Jupiter Key, then filed suit against Saturn and others seeking cancellation of the replat and injunctive and other relief, alleging that the replat's reduction of the size of the common recreation area violated the Declaration of Covenants and Restrictions for Jupiter Key.

Saturn retained attorney Brian McHugh and the law firm of Ruden, McClosky, Smith, Schuster & Russell, P.A. (hereinafter collectively referred to as "Ruden, McClosky") to defend the Blue Reef lawsuit. Saturn settled that lawsuit, but, in the instant litigation, is now suing Schwartz, Gold, its former lawyers, for malpractice, seeking damages.

Petitioners claim that they have produced all correspondence between Saturn and Schwartz, Gold pertaining to the Blue Reef lawsuit. They refused, however, to produce correspondence between Saturn and Ruden, McClosky, its current attorneys, concerning the Blue Reef litigation, objecting on the grounds of attorney-client privilege and the work product doctrine. The trial court held a hearing on the dispute, where Schwartz, Gold argued that any such privileges were waived when petitioners sued the attorneys representing them. Counsel pointed out that one of the defenses raised by Schwartz, Gold is that successor counsel, Ruden, McClosky, also advised Saturn to proceed with the subject development, thereby raising possible issues of causation and intervening negligence.

Certiorari review extends to discovery orders which depart from the essential requirements of law, cause material injury to a petitioner throughout the remainder of the proceedings, and effectively leave no adequate remedy on appeal. See Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). Orders compelling production of matters claimed to be protected by the attorney-client privilege or work product doctrine present the required potential for irreparable harm. See Martin-Johnson, Inc.

Attorney-Client Privilege

Florida law provides that the attorney-client privilege affords

[a] client [the] privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.

§ 90.502(2), Fla. Stat. (1997).

Respondents Schwartz, Gold argue that any attorney-client privilege which attached to the requested documents in the instant case was waived when they asserted the negligence of successor counsel, Ruden, McClosky, in the Blue Reef lawsuit as a defense. Respondents rely on section 90.502(4)(c) which provides:

(4) There is no lawyer-client privilege under this section when:

. . . . .

(c) A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.

We cannot agree that this exception to the attorney-client privilege applies here.

In Shafnaker v. Clayton, 680 So.2d 1109 (Fla. 1st DCA 1996), the First District granted certiorari and quashed an order directing production of documents in the possession of the clients' former attorneys, finding them to be protected under the attorney-client privilege. There, the former clients had been represented by, and had dismissed, some three law firms in connection with their lawsuit against an exterminating company. They settled their lawsuit when represented by the fourth law firm. The former clients sued the second law firm for malpractice, and that firm sought discovery from the first and third firms. The second law firm [the malpractice defendant] contended that the privileged information sought from the first and third firms was vital to...