STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION DIANA HEATON, Petitioner, v. Case No OCEAN VIEW TOWERS CONDOMINIUM ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER Comes now, the undersigned arbitrator, and enters this order as follows: On May 2, 2002, the Petitioner filed a petition for arbitration. In the petition, petitioner alleges that she requested to view and copy records of the association including the retainer agreement between the association and its attorney, pursuant to section (12), Florida Statutes. The petition alleges that the respondent has denied the petitioner access to the retainer agreement and its attachments. The petitioner requests an order permitting access to the records as well as statutory damages of $ for the denial of access to the books and records. The association filed its answer on June 8, The association admits receiving the request for inspection, alleges that all non-privileged documents have been provided, alleges that a redacted copy of the retainer agreement and its 1

2 attachment was provided, and asserts that certain portions of the retainer agreement or the attachment are protected by the attorney-client or work product privileges. It is the association's position that damages should not be awarded because its failure to produce the documents was based upon a good faith belief that such documents are exempt from disclosure pursuant to section (12), Florida Statutes. On June 25, 2002, the respondent filed a copy of the complete retainer agreement and its attachments for an in-camera inspection by the arbitrator. The retainer agreement can best be described as a standard contract between an attorney and its client. The retainer agreement contains mostly boilerplate language, generally detailing standards of representation as outlined by the Florida Bar. The exhibits to the retainer agreement, however, are a plan detailing the suggested legal tactics to be employed by the attorney while collecting delinquent assessments for the association, which is the function for which the association hired the attorney in this instance. With reference to the retainer agreement, the association provided to the petitioners a redacted copy of the agreement and its attachments, excluding all language it deemed to be protected by the attorney-client or work product privileges on April 12, On July 11, 2002, a phone conference was held with both parties. The question identified and presented for discussion at the status conference was whether the retainer agreement and the attachments requested by the petitioner are protected by work product and/or attorney-client 2

3 privileges. Additionally, the parties were given until July 30, 2002 to submit memorandum in support of their positions on this issue. Attorney-Client Privilege The attorney-client privilege is designed to encourage clients to disclose fully to counsel all pertinent facts, whether favorable or unfavorable, so that counsel can provide competent and effective legal representation. See Fisher v. United States, 425 U.S. 391, 403 (1976); In re Murphy, 560 F.2d 326, 337 (8th Cir.1977); Hoyas v. State, 456 So.2d 1225, 1228 (Fla. 3d DCA 1984). The privilege is well established in the common law, Hoyas, 456 So.2d at 1228, and has been codified in section , Florida Statutes (1985). Section provides, in relevant part: (1) For purposes of this section: (a) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. (b) A "client" is any person, public officer, corporation, association, or other organization or entity, either public or private, who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer. (c) A communication between lawyer and client is "confidential" if it is not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication. (2) 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 the client. 3

4 Section (12)(c)(1), Florida Statutes, specifically provides that records of a condominium association protected by lawyer-client privilege, as defined by Section , Florida Statutes, are exempt from disclosure to unit owners. Basic to the assertion of the attorney-client privilege is that the communication in question must have been made in confidence. In order to be privileged, a communication must be made in confidence of the relationship and under circumstances from which it may reasonably be presumed that it will remain in confidence. Wilcoxon v. United States, 231 F.2d 384 (10 th Cir. 1956). See also Dominguez v. Citizens' Bank & Trust Company, 56 So. 682 (Fla. 1911). Materials protected by the attorney-client privilege are exempt from disclosure pursuant to section (12), Florida Statutes, even where the documents would otherwise constitute official records within the meaning of the statute. See Philistin v. Shaker Village Condominium Association, Inc., Arb. Case No , Order Following Status Conference (April 9, 1998), (arbitrator held that the attorney-client privilege was applicable to shield disclosure of records otherwise subject to owner access pursuant to Section (12), Florida Statutes). WORK-PRODUCT DOCTRINE In addition to the traditional attorney-client privilege that protects confidential communications between the attorney and client, the "work product" privilege doctrine protects certain documents and papers of an attorney or a party, prepared in anticipation of litigation regardless of whether they pertain to 4

5 confidential conversations with a client. The Florida Supreme Court in Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla. 1970), defined work product to include the: personal views of the attorney as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence... Although what constitutes work product is incapable of concise definition adequate for all occasions, opinions and judgment calls of counsel are considered work-product of the highest order, and are absolutely or nearly absolutely protected. See Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970). See also Charles Ehrhardt, Florida Evidence (1993 Ed.); State v. Rabin, 495 So.2d 257, 262 (Fla. 3d DCA 1986); Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.), cert. denied, 474 U.S. 903 (1985). Work product can be divided into two categories: "fact" work product, factual information that pertains to the client's case and is prepared or gathered in connection therewith, and "opinion" work product, the attorney's mental impressions, conclusions, opinions, or theories concerning his client's case. See Rabin, 495 So.2d at 262. A clear distinction has been drawn between these two types of work product with respect to the degree of protection provided. While "fact" work product is discoverable upon a showing of need and undue hardship, "opinion" work product, which is work product which reflects the attorney's 5

6 mental impressions, conclusions, opinions or theories concerning the client's case, are given greater protection. Id. Moreover, the court in Rabin, stated that: The protection of an attorney's mental process is essential to the proper functioning of the adversary system. The possibility that an attorney's work product might be revealed, even in later unrelated causes, may deter the attorney from freely recording his mental impressions, conclusions, theories, or opinions. See, DuPlan Corp v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir. 1974). Additionally, the work product doctrine is broader than the attorney-client privilege. See Alachua General Hospital v. Zimmer, 403 So.2d 1087, 1088 (Fla. 1 st DCA 1981). ANALYSIS In the instant case, except for sections of the agreement on page one and two of the retainer agreement, the attorney-client privilege would not protect the remainder of the document. Most of the document neither expresses legal opinions nor suggests litigation strategy. In fact, most sections of the agreement are standard contract language detailing the rights and obligations of the parties to the contract and expressing the standards of representation outlined by the Rules of Professional Conduct and the Florida Bar. The association s assertion of the attorney-client privilege over these sections of the retainer agreement is without merit. Accordingly, except for Section 2, titled Enforcement of Covenants, Restriction, Rules and Regulations, the remaining sections of the retainer agreement cannot be said to contain confidential communications between the attorney and their client and are not protected from disclosure. 6

7 With the exception of the Section 2 Enforcement provision, the retainer agreement is not protected by the work-product doctrine either. The retainer agreement contains mostly factual information that pertains to the representation of the association. This factual information, as stated previously, is basic contract language detailing the rights and obligations of the parties to the contract and expressing the standards of representation as outlined by the Rules of Professional Conduct and the Florida Bar. Accordingly, the association s position that the sections of the retainer agreement, other that section 2, is protected by the work product doctrine is without merit. Regarding the attachment to the retainer agreement, this document, unlike the retainer agreement, appears to fall within the protection of the attorney-client privilege. The attachment, exhibit A, to the retainer agreement is a memorandum of the recommended collection procedures that may be utilized by the attorney. Given that exhibit A is a detailed listing of the attorney s tactics, opinions and recommendations for collection of delinquent assessments owed to the association, it is clear that the association intended that this document remain confidential. For example, exhibit A a series of steps to be taken by the attorney when collecting delinquent assessments and the actions to follow when each prior collection effort has failed. Accordingly, exhibit A is protected by the attorney-client privilege as defined by Section Florida Statutes. Exhibit A, however, reflects the association's attorney's mental impressions, conclusions, opinions and theories concerning certain types of 7

8 litigation involving the association, and is opinion work product. Accordingly, exhibit A to the retainer agreement is protected by both the attorney client and work-product privileges. Based upon the foregoing, it is concluded that exhibit A to the retainer agreement is an association record exempt from disclosure pursuant to the attorney-client and work product privileges. The association s failure to disclose this exhibit A is not a violation of Section , Florida Statutes. The retainer agreement, with the exception of the Section 2 Enforcement provision, is not protected by either the attorney-client or the work product privilege. The association s assertion of the work product and attorney client privileges over the remaining sections of the retainer agreement is without merit. Accordingly, the respondent is hereby ordered to produce the retainer agreement, with the exception of Section 2, and the request to produce exhibit A is DENIED. The petitioner is hereby awarded the sum of $ for the violation of Section , Florida Statutes, for failing to disclose the non-privileged sections of the retainer agreement. DONE AND ORDERED this 20 th day of August 2002, at Tallahassee, Leon County, Florida. Richard M. Coln, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, FL

9 RIGHT TO TRIAL DE NOVO PURSUANT TO SECTION , FLORIDA STATUTES, THIS DECISION SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT APPEALABLE TO THE DISTRICT COURTS OF APPEAL. ATTORNEY S FEES As provided by s , F.S., the prevailing party in this proceeding is entitled to have the other party pay its reasonable costs and attorney s fees. Rule 61B , F.A.C., requires that a party seeking an award of costs and attorney s fees must file a motion seeking the award not later than 45 days after rendition of this final order. The motion must be actually received by the Division within this 45-day period and must conform to the requirements of rule 61B , F.A.C. The filing of an appeal of this order does not toll the time for the filing of a motion seeking prevailing party costs and attorney s fees. CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing was mailed by U.S. mail, postage prepaid, this 20 th day of August 2002, to: F. Blane Carneal, Esq. P.O. Box Fort Lauderdale, FL Mark M. Heinish, Esq. Katzman & Korr, P.A W. Oakland Park Blvd. 2 nd Floor Lauderhill, FL Richard M. Coln, Arbitrator 9