William Hamilton Arthur Architect, Inc. v. Schneider
| Decision Date | 29 June 2022 |
| Docket Number | 3D22-834 |
| Citation | 342 So.3d 757 |
| Parties | WILLIAM HAMILTON ARTHUR ARCHITECT, INC., et al., Petitioners, v. Jeffrey C. SCHNEIDER, Respondent. |
| Court | Florida District Court of Appeals |
The Solomon Law Group, P.A., and Stanford R. Solomon and Laura H. Howard (Tampa), for petitioners.
Alvarez, Feltman, Da Silva & Costa, PL, and Paul B. Feltman ; Law Offices of Robert P. Frankel, P.A., and Robert P. Frankel (Plantation), for respondent.
Before SCALES, HENDON and GORDO, JJ.
Petitioner William Hamilton Arthur, IV, a co-defendant below,1 seeks certiorari review of an April 19, 2022 order that requires Arthur to: (i) produce for in camera inspection certain communications between Arthur and his legal counsel; and (ii) permit respondent Jeffrey C. Schneider, the plaintiff below, to make a digital copy of Arthur's electronic device so that the trial court can review in camera Arthur's internet searches. We have jurisdiction.2
After Arthur hired a new lawyer to defend Arthur against Schneider's architectural malpractice claims, Arthur sent a funeral flower arrangement to Schneider's counsel, accompanied by an unsigned note that read, "Please be advised that I am changing counsel, and accept my belated birthday gift":
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Upon receiving the floral arrangement, Schneider's lawyer allegedly felt threatened and not only filed a police report, but also, on behalf of Schneider, filed below "Plaintiff's Motion for Sanctions Against Defendants as a Result of Defendant, William Hamilton Arthur, IV's Disturbing and Deranged Litigation Misconduct" ("the contempt motion"). In response, Arthur filed an affidavit wherein Arthur attested, among other things, that "I thought my name would be included on the delivery" and "[t]he flowers were not selected because of any funeral overtones." Arthur's affidavit gave a detailed account of the internet searches Arthur allegedly performed to identify the local flower shop's website, claiming that he had selected the "Peaceful Pink Heart Wreath" arrangement arbitrarily based on the website's picture and a generic description of the arrangement. Further, Arthur attested that he put the "belated birthday gift" comment in the note that accompanied the flowers because Arthur knew that Schneider's attorney had recently had a birthday.
Following a non-evidentiary hearing on the contempt motion, the trial court entered an order setting an evidentiary hearing for Arthur to show cause as to why Arthur should not be held in contempt and subject to sanctions ("the show cause hearing"). In addition, the trial court entered the challenged April 19, 2022 order that required Arthur, prior to the show cause hearing, to: (i) produce to the trial court for in camera review "all communications with [Arthur's] counsel and insurance carrier" regarding Arthur's ordering of the flowers; and (ii) permit Schneider "to take an image of the device [Arthur] used (whether cell phone, laptop, computer, or other device) to purchase the flowers at issue so the Court can review in camera [Arthur's] Google searches and the results thereof." Finally, the challenged order prohibited Arthur from directly communicating with Schneider or Schneider's counsel.
Arthur then filed the instant petition in this Court asserting that (i) the portion of the challenged order requiring the production of communications between Arthur and his counsel violated the attorney-client privilege, and (ii) the portion of the challenged order requiring Arthur to turn his electronic device over to Schneider violated Arthur's privacy rights.3 We stayed the order and we now quash the challenged portions of the order.
Over fifty years ago, The Rolling Stones promulgated a guide to when, how, and under what circumstances to send flowers to an adversary:
Notably absent from these protocols is a party sending flowers to opposing counsel as a means of providing notice that the party has hired a new attorney.
To be clear, we certainly do not condone Arthur's odd actions. Depending upon the trial court's findings at the show cause hearing, Arthur's conduct may very well result in the imposition of sanctions. Indeed, at the non-evidentiary hearing on the contempt motion, Arthur's new counsel freely conceded that Arthur's actions were inappropriate. The propriety of Arthur's conduct, though, is not before us. Our inquiry is limited to whether the challenged order violates the attorney-client privilege and Arthur's privacy rights. See Coffey-Garcia, 194 So. 3d at 536 ; Holland, 35 So. 3d at 955.
"Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged." Lee v. Condell, 208 So. 3d 253, 257 (Fla. 3d DCA 2016) (quoting Fisher v. U.S., 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) ). Absent extraordinary circumstances delineated by section 90.502 of the Florida Statutes – the statute that codifies the attorney-client privilege – neither the lawyer nor the client can be compelled to disclose the content of private communications protected by the privilege. R.L.R. v. State, 116 So. 3d 570, 573, n.4 (Fla. 3d DCA 2013).
Section 90.502 provides that "[a] client has a 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 client." § 90.502(2), Fla. Stat. (2022). Any communication between a lawyer and a client that is not intended to be disclosed to a third person is considered to be "confidential." § 90.502(1)(c), Fla. Stat. (2022). Section 90.502 identifies only five statutory exceptions to attorney-client privilege:
§ 90.502(4)(a)-(e), Fla. Stat. (2022).
Although Schneider's contempt motion did not argue that any of the statutory exceptions to the privilege applied, at the hearing on the contempt motion, Schneider's counsel suggested, in conclusory fashion, that the privilege did not apply because Arthur's conduct "possibly is a crime" and, therefore, "we need to know whether [Arthur's] lawyers knew about this." Though not entirely clear, it appears that Schneider's counsel was relying upon section 90.502(4)(a), commonly referred to as the crime-fraud exception to the attorney-client privilege.5
To trigger the applicability of section 90.502(4)(a), however, it is incumbent upon the party seeking the disclosure of the privileged communication to (i) "[f]irst, ... allege that the communication was made as part of an effort to perpetrate a crime or fraud, and the party must also specify the crime or fraud," and (ii) "[s]econd, ... establish a prima facie case that the party asserting the attorney-client privilege sought the attorney's advice in order to commit, or in an attempt to commit, a crime or fraud." Butler, Pappas, Weihmuller, Katz, Craig, LLP v. Coral Reef of Key Biscayne Developers, Inc., 873 So. 2d 339, 342 (Fla. 3d DCA 2003). If the proponent fails to meet this threshold burden, the trial court cannot require that the communications be produced to the trial court for an in camera review. See First Union Nat'l Bank v. Turney, 824 So. 2d 172, 183 (Fla. 1st DCA 2001) .
Schneider failed to meet this threshold burden, and does not assert that any other exception to the attorney-client privilege applies here; hence, we are compelled to quash that portion of the order that requires the production of communications between Arthur and his counsel.6
At the non-evidentiary hearing on the contempt motion, sensing that the trial court seemed skeptical of the averments in Arthur's affidavit, Arthur's counsel offered to allow the trial court to question Arthur under oath. The trial court...
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