JANE R. WHITENER, PETITIONER,
v.
FIRST UNION NATIONAL BANK OF FLORIDA, ETC., RESPONDENT
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The petitioner seeks certiorari to quash an order disqualifying her counsel based on the improper disclosure of privileged documents in related litigation. The Fifth District Court of Appeal affirms the disqualification despite reconsidering its prior decision in light of subsequent rulings in a related case, finding that the attorney-client privilege was properly invoked and the trial court did not abuse its discretion in imposing this remedy.
The court denied the petition for certiorari, holding that the trial court did not abuse its discretion in disqualifying counsel and that the attorney-client privilege was properly invoked. The court reaffirmed that the crime-fraud exception does not apply to the facts of this case.
[1] A disqualification of counsel remedy for improper disclosure of privileged documents is not an abuse of discretion when the court previously admonished the trial court to…
[2] The crime-fraud exception to the attorney-client privilege does not apply if the facts do not support its application.
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Join FLexlaw to unlock all legal intelligence“we still do not see how the crime-fraud exception to the attorney/client privilege applies to the facts of this case”
The court reaffirms its prior holding that the crime-fraud exception does not apply, despite reconsidering the issue in light of related proceedings.
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Join FLexlaw to unlock all legal intelligencePetitioner Whitener was involved in litigation against First Union National Bank of Florida. Privileged documents belonging to First Union were improp…
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PER CURIAM.
Petitioner seeks a writ of certiorari to quash an order of the lower court disqualifying counsel in light of our opinion in First Union National Bank v. Whitener, 715 So. 2d 979 (Fla. 5th DCA 1998), review denied, 727 So. 2d 915 (Fla.1999). Because of the subsequent rulings in a related case in Duval County allowing discovery of documents we had held not to be discoverable in the Seminole County litigation, we have taken most seriously the matters presently before the court. We have re-reviewed what we have from First Union National Bank v. Whitener, 715 So. 2d 979, and we have ordered up and pored over the relevant filings in the Duval County suit involving the other beneficiary, Helen Turney, and the unsuccessful petition for certiorari that followed in the First District Court of Appeal.1
We recognize that the proceedings following our Whitener decision have been harsh for petitioner; the remedy fashioned for improper disclosure of the privileged documents — -removal of counsel — was a strong one. Petitioner has urged that our Whitener decision was wrong and that in order to prevent manifest injustice, we should revisit our decision in light of events in Duval circuit court. We have tried to approach this issue with an open mind and were prepared to act if we concluded our prior decision had been wrong. After reviewing all these new materials, however, we still do not see how the crime-fraud exception to the attorney/client privilege applies to the facts of this case. There are some aspects of the Turney case that may make the issue a bit closer than in this case but, we remain convinced that the attorney/client privilege of First Union should not have been abrogated. In light of our admonition to the trial court in our Whitener decision to fashion a remedy that would minimize prejudice to respondent due to the improper turnover of its privileged documents to opposing counsel,2 we cannot say that the lower court abused its discretion.
PETITION FOR WRIT OF CERTIO-RARI DENIED.
PETERSON and GRIFFIN, JJ, concur. SHARP, W., J., dissents, without opinion.
. First Union Nat’l Bank v. Turney, 731 So. 2d 1275 (Fla. 1st DCA), mandamus and prohibition dismissed, 761 So. 2d 328 (Fla.1999).
. The record shows that removal of counsel as a possible consequence of the erroneous disclosure of the privileged documents was much discussed between the opposing parties from the outset.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Whitener v. First Union Nat'l Bank OF Fla., 901 So. 2d 366 (Fla. 5th DCA 2005)…“similar matter,”2 it concluded that it was required to follow the mandate of this court. While the trial court stayed the proceedings below, Whitener sought certiorari review of the trial court’s orders. Whitener v. First Union Nat’l Bank of Fla., 783 So. 2d 287, 287 (Fla. 5th DCA 2001) (“Whitener II”). This court affirmed the trial court’s decision disqualifying Whitener’s counsel but noted: There are some aspects of the Turney case that may make the issue a bit closer than in this case but, we remain con…
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Whitener v. First Union Nat'l Bank OF Fla., 852 So. 2d 443 (Fla. 5th DCA 2003)…nd their possession of the documents has finally been determined to have been lawful by the First District Court of Appeal. . First Union Nat’l Bank v. Whitener, 715 So. 2d 979 (Fla. 5th DCA 1998) (Whitener I); Whitener v. First Union Nat’l Bank, 783 So. 2d 287 (Fla. 5th DCA 2001) (Whitener II).…
Authorities Cited
- First Union Nat'l Bank OF Fla. v. Whitener, 715 So. 2d 979 (Fla. 5th DCA 1998)