GOLD COAST RACEWAY, INC., A FLORIDA CORPORATION, PETITIONER,
v.
HOWARD EHRENFELD AND MONICA EHRENFELD, RESPONDENTS
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Gold Coast Raceway petitioned for certiorari review of a protective order that shielded discovery regarding whether a rental payment was timely tendered to the lessor's attorney. The Fourth District Court of Appeal held that the attorney-client privilege does not apply when an attorney acts in a capacity other than as attorney, such as receiving payments on behalf of a client, and quashed the protective order.
The court held that the attorney-client privilege does not apply when an attorney acts in a capacity other than as an attorney, such as receiving or depositing payments on behalf of a client, and that discovery regarding the tender of payment should not be protected by the privilege. Accordingly, the protective order was quashed.
[1] Certiorari is a permissible method for reviewing discovery orders under appropriate circumstances.
[2] The attorney-client privilege does not apply when an attorney acts in a capacity other than as an attorney, such as a depository or trustee.
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Join FLexlaw to unlock all legal intelligence“where the attorney acts in any other capacity than as an attorney, such as a depository, or trustee, the attorney-client [relationship] does not obtain, and that the subject matter must relate to the subject matter of the attorney's employment”
Establishes the key principle that attorney-client privilege does not apply when an attorney acts in a non-legal capacity, such as receiving payments.
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Join FLexlaw to unlock all legal intelligenceGold Coast Raceway leased property from the Ehrenfelds under a written lease agreement. The Ehrenfelds alleged the lease was unenforceable due to fail…
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HERSEY, Judge.
We have for review by petition for writ of certiorari a protective order issued by the lower tribunal significantly limiting discovery.
At issue in the case pending in the circuit court is the validity of a written lease alleged by respondent lessor to be unenforceable because of failure of consideration in that a rental payment was not made. Petitioner, on the other hand, has alleged timely tender to respondent’s attorney of the rental payment in question.
Petitioner’s attempts to take discovery on this issue, first by deposition of respondents’ counsel and subsequently by deposition upon written questions submitted to him proved futile. Ultimately, counsel for respondent, relying on the defenses of “attorney-client privilege” and “settlement negotiations” obtained a protective order effectively insulating the issue of the purported tender of payment from further discovery.
We have held that certiorari is a permissible method of seeking review of orders involving discovery under appropriate circumstances. Murray Van and Storage, Inc. v. Murray, 343 So. 2d 61 (Fla.4th DCA 1977).
Respondent relies upon the attorney-client privilege as shielding from discovery matters within his own particular knowledge pertaining to a payment allegedly made to him for his client. As the court said in Silverman v. Turner, 188 So. 2d 354 (Fla.3d DCA 1966), followed by this Court in Mogul v. Fodiman, 315 So. 2d 108 (Fla.4th DCA 1975):
[ W]here the attorney acts in any other capacity than as an attorney, such as a depository, or trustee, the attorney-client relationship does not obtain, and that the subject matter must relate' to the subject matter of the attorney’s employment. See: Tillotson v. Boughner, N.D.Ill.1965, 238 F.Supp. 621.
We think that rule applies here. We further determine that the protective order “does not conform to the essential requirements of law and to proceed without immediate review may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal is inadequate.” Chalfonte Development Corporation v. Beaudoin, 370 So. 2d 58, 59 (Fla.4th DCA 1979).
The petition for writ of certiorari is granted; the protective order is quashed; and the cause is remanded for further proceedings.
MOORE and BERANEK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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United States Fid. & Guar. Co. v. Graham, 404 So. 2d 863 (Fla. 4th DCA 1981)…defendants’ motions to compel discovery based on attorney/client privilege. We are asked to review this order by certiorari. In seeking to invoke the certiorari jurisdiction of this court, petitioners rely on Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So. 2d 1002 (Fla. 4th DCA 1981) and Travelers Indemnity Co. v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980). The requirements for certiorari review have oft been stated. There must be a departure from the essential requirements of law which will cause material inju…
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Young, Stern & Tannenbaum, P. A. v. Smith, 416 So. 2d 4 (Fla. 3d DCA 1982)…ssential requirements of law. Frantz, Travelers, Allstate, supra. Only those communications which actually fall under the attorney/client privilege are protected. Seeba v. Bowden, 86 So. 2d 432, 434 (Fla.1956); Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So. 2d 1002 (Fla. 4th DCA 1981); Section 90.502(4)(d), Florida Statutes (1979). We are cognizant of the conflict on this issue. The Fourth District receded from Gold Coast Raceway, Inc. v. Ehrenfeld, supra, in United States Fidelity & Guaranty Company v. Grah…
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Power Plant Ent., LLC v. Trump Hotels & Casino Resorts Dev. Co., LLC, 958 So. 2d 565 (Fla. 4th DCA 2007)…struction, 244 So. 2d 463 (Fla. 4th DCA 1971), we granted a petition for certiorari and quashed an order preventing the plaintiff from deposing three employees of the defendant in a personal injury case. And in Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So. 2d 1002 (Fla. 4th DCA 1981), we quashed a protective order precluding discovery based on attorney-client privilege. Although a three judge panel of this court purported to partially recede from Gold Coast in United States Fidelity & Guaranty Co. v. Graham,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Edwards v. Lawyers Title Guar. Fund, 370 So. 2d 58 (Fla. 3d DCA 1979)
- Wenk v. Tsiotis, 370 So. 2d 58 (Fla. 4th DCA 1979)
- Seymour Silverman v. Anne Turner and Paul Turner, 188 So. 2d 354 (Fla. 3d DCA 1966)
- The Maritimes Corcoran Org., Inc. v. Marine Flotation, Inc., 343 So. 2d 61 (Fla. 4th DCA 1977)
- Murray VAN & Storage, Inc. v. Murray, 343 So. 2d 61 (Fla. 4th DCA 1977)
- Mogul v. Fodiman, 315 So. 2d 108 (Fla. 4th DCA 1975)