Skorman v. Hovnanian of Florida, Inc.

• Decision Date: 07 May 1980
• Docket Number: No. 79-2575,79-2575
• Parties: Marc SKORMAN, Petitioner, v. HOVNANIAN OF FLORIDA, INC., Respondent.
• Court: Florida District Court of Appeals

Page 1376

382 So.2d 1376

Marc SKORMAN, Petitioner, v. HOVNANIAN OF FLORIDA, INC., Respondent.

No. 79-2575.

District Court of Appeal of Florida, Fourth District.

May 7, 1980.

Richard B. Burk, of Scott, Burk, Royce & Harris, P. A., Palm Beach, for petitioner.

Thomas E. Kingcade, of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, P. A., Palm Beach, for respondent.

DOWNEY, Judge.

Petitioner Marc ¹ Skorman seeks review by Petition for Writ of Certiorari of an order of the trial court dated November 28, 1979, requiring petitioner to produce copies of all correspondence between petitioner and his attorneys pertaining to the purchase of certain property and the good faith deposit which was put into escrow. Reference is made to certain interrogatories; however, the orders of November 29, 1979, and December 19, 1979, under review relate only to respondent's motion to produce.

The petitioner alleges that the parties entered into an agreement for purchase and sale of certain property pursuant to which the purchaser deposited the sum of $40,000 as good faith money with the law firm of Boose & Ciklin. The latter firm of attorneys represented petitioner in the transaction. The agreement, it is alleged, was subject to certain contingencies. When the contingencies failed to occur the deposit was returned to petitioner by the law firm of Boose & Ciklin pursuant to the agreement, and eventually this litigation ensued.

Respondent filed a motion requesting petitioner to produce, among other things:

"Copies of any and all correspondence between Marc Skorman and William Boose, III and/or Alan J. Ciklin pertaining to the purchase of this property or the good faith deposit which was put into escrow."

Petitioner's objection thereto was overruled and petitioner seeks review by Petition for Writ of Certiorari because he contends the correspondence referred to constituted privileged communications between attorney and client.

After receiving respondent's response to the petition we issued an order relinquishing jurisdiction to the trial court for an in camera inspection of any correspondence between petitioner and his attorneys pertaining to the subject property or the escrow deposit for the purpose of determining whether the correspondence in question, or any of it, is privileged. The matter is now before us on petition to rehear that order. Petitioner contends no in camera inspection should be made, but if one is inevitable it should be made by a judge other than the one presiding over this case in order not to prejudice the resolution of the issues involved herein. We have granted the petition for rehearing in order to treat what we consider to be the focal question involved; i. e., whether the correspondence which respondent seeks to have produced falls within the protection of the attorney-client privilege and is thus immune from discovery.

Of course, not all communications between lawyer and client are privileged. According to Wigmore, the privilege attaches

"(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected, (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived." 8 Wigmore, Evidence § 2292 (McNaughton rev. 1961)

Another definition of the privilege is contained in N.L.R.B. v. Harvey, 349 F.2d 900 (4th Cir.1965), wherein the court stated:

" 'The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.' " 349 F.2d at 904.

A review of the cases on the subject makes it clear that if a communication with a lawyer is not made with him in his professional capacity as a lawyer, no privilege attaches. Pollock v. U. S., 202 F.2d 281 (5th Cir.1954), cert. denied, 345 U.S. 993, 73 S.Ct. 1133, 97 L.Ed. 1401 (1953); Olender v. U. S., 210 F.2d 795 (9th Cir.1954), cert. denied, 352 U.S. 982, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957); 8 Am.Jur.2d, Witnesses § 182. Thus, where a lawyer is engaged to advise a person as to business matters as opposed to legal matters, or when he is employed to act simply as an agent to perform some non-legal activity for a client the authorities uniformly hold there...