Dean v. Dean

• Decision Date: 04 November 1992
• Docket Number: No. 92-0669,92-0669
• Citation: Dean v. Dean, 607 So.2d 494 (Fla. App. 1992)
• Parties: 17 Fla. L. Weekly D2533 Ruth DEAN, and Barry Krischer, Petitioners, v. Roger DEAN, Respondent.
• Court: Florida District Court of Appeals

Page 494

607 So.2d 494

17 Fla. L. Weekly D2533

Ruth DEAN, and Barry Krischer, Petitioners, v.Roger DEAN, Respondent.

No. 92-0669.

District Court of Appeal of Florida Fourth District.

Nov. 4, 1992.

Rehearing Denied Dec. 2, 1992.

Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, and Barry E. Krischer of Salnick & Krischer, West Palm Beach, for petitioners.

Joseph D. Farish of Farish, Farish, and Romani, of West Palm Beach, for respondent.

FARMER, Judge.

The issue raised here is whether the attorney-client privilege can be used to prevent the disclosure of the identity of a person who had previously consulted an attorney regarding the return of stolen property belonging to one of the parties in a civil case.As we explain along the way, under the circumstances of this case the privilege bars such disclosure.

The facts are unusual, to say the least.During the pendency of the Deans' dissolution of marriage case, the husband's place of business was allegedly burgled, resulting in the loss of two duffel bags containing various personal items belonging to husband's daughter, and from $35,000 to $40,000 in cash.Sometime after the theft, an unidentified person telephoned Krischer at his office.He related the conversation as follows:

I received a telephone call from an individual who knew that I was an attorney; knew I was an attorney that was involved in the Baltes ¹ matter and the individual asked me for advice with regard to returning property.I advised this person on the telephone that the experience that I have had in the State Attorney's office was that the best avenue was to turn the property over to an attorney and let the attorney bring it to the State Attorney's office or to the law enforcement.

At another point, Krischer added:

Obviously I have been through this before and I knew all the questions to ask this person and I got all the responses back which indicates to me this person knew I was a lawyer, was asking for legal advice and did not want their identity revealed.

Krischer met twice and had one telephone conversation with this person.Nearly six weeks after the second meeting, the two duffel bags containing only the daughter's personal property were delivered to Krischer's office by someone who told his receptionist that he"would know what they are."No cash was included with the returned items.Krischer then delivered the bags to the police, telling them that they"may have some connection with" husband.

In a twist of irony, these events came to light through Krischer's former secretary, who had also by then become a client of husband's lawyer.Soon after, husband's lawyer served Krischer with a subpoena for a deposition, seeking the identity of Krischer's contact.Krischer asserted the privilege at the deposition.Husband then moved to compel the testimony.After a hearing, the trial court granted the motion, saying in part:

The purpose of the attorney-client privilege is to encourage the free and full disclosure by clients of information to attorneys so that adequate legal representation can be supplied.It is not however the purpose of the attorney-client privilege to act as a vehicle by which individuals can use an attorney to insulate themselves from disclosure relative to activities which do not involve legal representation.In this case, Mr. Krischer did not appear in court or render any legal opinions; rather he merely advised the person to use an attorney as a conduit and then acted in that capacity to deliver stolen goods to the police.He did nothing and gave no opinions that could not have been done or given by any member of the public.

There are other factors which weigh against the existence of an attorney-client relationship.Mr. Krischer testified that when he is hired by a new client it is his office procedure to create a three by five card with the name and address of the client; and to enter the name of the client in his computer system.None of these office procedures were followed with reference to this individual.Mr. Krischer also testified that he did not receive a fee for his services in this matter and that he does not expect to receive a fee in the future.While these facts certainly do not preclude the existence of an attorney-client relationship, I find them to be more consistent with Mr. Krischer having acted as a conduit than as an attorney in this matter.

The court concluded that there was no attorney-client relationship, and thus no privilege, and ordered Krischer to answer the questions as to the identity of his contact.Krischer and the wife in the dissolution proceedings have filed a petition for a common law writ of certiorari in which they seek to quash the decision and to uphold the privilege.²

The attorney-client privilege, though dating back to Elizabethan England, did not become developed in its present form until the nineteenth century.8 Wigmore, Evidence, Sec. 2290(McNaughton rev. 1961)[Wigmore].It rests on the theory that:

"[i]n order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit the disclosure except on the client's consent."

8 Wigmore at Sec. 2291.One of the most eloquent formulations of the rationale for the privilege is thus:

Let the person be who he may, strong or weak, learned or unlearned, wise or foolish, a man of influence and invested with authority, or destitute of means and utterly helpless, his claims are equally to be laid before the judge with all the power of advocacy of which they are susceptible.To accomplish this object, the first indispensable requisite is, that the client shall so state to his legal advisers all the facts of his case.Very few clients can perceive wherein their strength lies.They must state the whole to the legal adviser, and leave him to form his own judgment.* * * [E]very man can ascertain the law by consulting a lawyer.But then the condition, upon which this power of ascertaining the law will rest is, that he may make the inquiry without incurring any danger.The communication must be privileged to the utmost extent, or it will not be made.Thus it will be one consequence of [the failure to accord the privilege], that the law will be in no way open to the community at large: to them it will be a sealed book * * *.[e.o.]

8 Wigmore at Sec. 2291.

By the early eighteen hundreds, it was generally understood that the privilege did not depend on the existence of a formal proceeding or even an incipient controversy; rather it was accepted that all "communications made in seeking legal advice for any purpose were within the principle of the privilege."[e.o.]8 Wigmore at Sec. 2294.As Wigmore describes this development, the privilege was in time extended:

to include communications made, first during any other litigation; next, in contemplation of litigation; next, during a controversy but not yet looking to litigation; and, lastly, in any consultation for legal advice, wholly irrespective of litigation or even of controversy.[e.s.]

8 Wigmore at Sec. 2290.In the words of the treatise, "[i]t has never since been doubted to be the law."Id.

In short, since its modern development, the privilege is founded wholly on subjective considerations: "[i]n order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed * * *."8 Wigmore at Sec. 2291.Or, as it was stated more recently:

The [privilege] rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.

Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186(1980).Hence, it logically follows that the privilege does not turn on the client actually hiring or engaging the attorney; it is enough if the client merely consulted the attorney about a legal question "with the view to employing [the attorney] professionally * * * although the attorney is not subsequently employed."Keir v. State, 152 Fla. 389, 394, 11 So.2d 886, 888(1943).

What thus originally began as the product of prudential rules devised by common law judges in recognition of these ideas has now become codified by statute, ³ as well as disciplinary rules governing the conduct of lawyers.⁴Although FEC section 90.102 provides generally that the Florida Evidence Code supersedes the common law, it is also generally accepted that FEC section 90.502 represents a codification of pre-code law on the privilege.SeeCharles W. Ehrhardt, Florida Evidence, Sec. 502.1 (1992 Ed.).Under FEC section 90.502(1)(b), a "client" is defined as any person "who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer."We construe this language as continuing the common law focus on subjective considerations, viz., on the person seeking consultation with a lawyer, rather than on what the lawyer does.

It is thus necessary in this case that we focus not on what Krischer did but on what the client intended.Krischer testified that his contact sought legal advice from him--which is, he contends, paradigmatically a legal service--and hence became his client for the purpose of invoking the privilege.We agree.

Krischer's testimony makes plain the intent of his client.

Q.Is it true that the employment by you, by person "x" was predicated on the fact that you would keep person "x's" identity confidential?

A.Yes, that was the condition of the employment.

Q.Was your employment also a condition that you were person "x's" lawyer for all purposes?

A.Correct.The individual called--I can expedite this if I can state a couple of things, judge.I had obviously been through this previously in another case.I was well aware of what was needed to be established in order to protect this client....