TAIL OF THE PUP, INC., PETITIONER,
v.
WAYNE E. WEBB, RESPONDENT
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Tail of the Pup, Inc. sought a writ of certiorari to overturn a trial court's denial of a protective order shielding attorney-client privileged communications from a subpoena. The court held that the lawyer-client privilege applies to corporations and rests with the corporation's management, not individual stockholders, and therefore granted the petition.
The lawyer-client privilege applies to corporations, and the authority to assert or waive the privilege rests with the corporation's board of directors management, not with individual stockholders. A minority stockholder, officer, and director has no authority to waive or assert the privilege against the wishes of the corporation's board of directors.
[1] The lawyer-client privilege applies to corporations.
[2] The power to exercise the corporate lawyer-client privilege rests with the corporation's management.
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Join FLexlaw to unlock all legal intelligence“It is well established that the lawyer-client privilege applies when the client is a corporation. Section 90.502(l)(b), Florida Statutes (1987). In Florida, all corporate powers are exercised by, or under the authority of, the corporation's board of directors.”
Establishes that corporate lawyer-client privilege is recognized under Florida law and that corporate powers rest with the board of directors.
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Join FLexlaw to unlock all legal intelligenceRespondent Webb and three majority stockholders were the sole owners, officers, and directors of petitioner corporation. Webb filed suit against the c…
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PER CURIAM.
Petitioner seeks a writ of certiorari from the trial court’s order denying a motion for a protective order from respondent’s subpoena duces tecum. We grant the petition.
Respondent and three majority stockholders and directors are the sole owners, officers and directors of petitioner, a corporation. Respondent filed a multiple count complaint against petitioner and the three majority stockholders arising from the corporation’s alleged wrongful attempt to rescind his stock and remove him as an officer and director of the corporation.
During the course of the lawsuit, respondent subpoenaed, among other materials, correspondence and memoranda between petitioner and its corporate counsel dated between November 25,1985 and November 7, 1986. The corporation asserted the lawyer-client privilege as the basis for a protective order. The circuit court found that the lawyer-client privilege did not apply because respondent apparently owned 25% of the corporation’s stock and had not been removed as a director during the applicable time period.
The circuit court departed from the essential requirements of law when it determined that the lawyer-client privilege did not apply due to the respondent’s status with the corporate petitioner. It is well established that the lawyer-client privilege applies when the client is a corporation. Section 90.502(l)(b), Florida Statutes (1987). In Florida, all corporate powers are exercised by, or under the authority of, the corporation’s board of directors. Section 607.111(1), Florida Statutes. The power to exercise the corporate lawyer-client privilege rests with the corporation’s management. Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985). When the control of a corporation passes to new management, the authority to assert and waive the lawyer-client privilege passes as well. Respondent, in his position as an individual stockholder, officer and director, has no authority to waive or assert the privilege against the wishes of the corporation’s board of directors. See Commodity Futures Trading Commission, 471 U.S. at 349, 105 S.Ct. at 1991.
Since materia] injury not remedial on appeal could result from the disclosure of the privileged materials, we grant the petition for writ of certiorari and vacate that portion of the order which requires divulgence of the correspondence and memoranda between petitioner and its corporate counsel.
SCHEB, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
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Shell OIL Co. v. PAR Four P'ship, 638 So. 2d 1050 (Fla. 5th DCA 1994)…Florida Statutes (1993). This privilege covers communications on legal matters between corporate counsel and corporate employees. See, e.g., United Serv. Auto. Ass’n v. Crews, 614 So. 2d 1213, 1214 (Fla. 4th DCA 1993); Tale of the Pup, Inc. v. Webb, 528 So. 2d 506, 507 (Fla. 2d DCA 1988). When communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not. See Florida Mining and Materials Corp. v. Continental Casualty Co., 556 So. 2d 518 (Fla.…
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Rogan v. Oliver, 110 So. 3d 980 (Fla. 2d DCA 2013)…rning matters within the scope of their corporate duties. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348-49, 105 S.Ct. [*984] 1986, 85 L.Ed.2d 872 (1985) (emphasis added; footnotes omitted); see also Tail of the Pup, Inc. v. Webb, 528 So. 2d 506, 507 (Fla. 2d DCA 1988) (noting same). Here, the trial court departed from the essential requirements of the law by concluding that Oliver — a “displaced manager” — had the authority to waive or assert the attorney/client privilege on behalf of the…
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State v. Justice, 624 So. 2d 402 (Fla. 5th DCA 1993)…thority. This court has recognized that “[generally the board of directors represents the corporation and conducts its business.” Charron v. Coachmen Industries, Inc., 417 So. 2d 1145, 1146 (Fla. 5th DCA1982). See also Tail of the Pup, Inc. v. Webb, 528 So. 2d 506 (Fla. 2d DCA1988) (only board of directors has authority to waive or assert corporation’s attorney-client privilege); Mease v. Warm Mineral Springs, Inc., 128 So. 2d 174 (Fla. 2d DCA), cert. denied, 132 So. 2d 291 (Fla.1961) (board of directors repr…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343 (U.S. 1985)