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Can A Plaintiff Be Asked in Deposition Whether They Previously Consulted Other Lawyers?

Florida’s Third District Court of Appeal issued an opinion in Michelle Coffey-Garcia v. South Miami Hospital, Inc. regarding whether defendants, seeking to prove that the statute of limitation was blown, could ask the plaintiff “who, when and why” questions about consulting prior lawyers.  The appellate court quashed part of the writ and the mixed result likely will not entirely please either plaintiff nor defense counsel.

As a technical point, the Court noted there is a difference between the evidentiary rule of “attorney client privilege” (disclosure in judicial and administrative hearings) and the ethics rule of “client-lawyer confidentiality” (disclosure outside of those hearings).  Here, the issue related to the evidentiary rule in Florida Statute 90.502(2).

Here’s what the plaintiff had to answer:

  • The fact of consultation or employment of counsel (“when and with whom she consulted for the general purpose of discussing possible legal remedies stemming from her daughter’s condition does not, on this record, implicate the attorney-client privilege”);
  • The general subject matter (or the general purpose) of the representation is not privileged; and
  • What she learned at various points in time concerning the nature and potential causes of her daughter’s condition from sources other than the lawyers she consulted.

The plaintiff does not have to answer:

  • Reasons why she sought out legal counsel and any subsequent counsel.

The court noted that the defense’s necessity for such information nor does undue hardship overcome the privilege.

 

 

Christopher B. Hopkins

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