What is Protected in Attorney-Client Privilege in Florida Criminal Cases?

If you’re looking to hire a Fort Lauderdale criminal defense lawyer, you may be wondering to what extent your conversations will stay private. 

As plainly stated by the Florida Office of Criminal Conflict and Civil Regional Counsel, “attorney-client privilege protects all confidential communications between attorney and client and cannot be disclosed without the consent of the client.”

That said, not all communications are “confidential,” as explained in Florida’s attorney-client privilege statute, F.S. 95.502. Not every conversation between you and your attorney is necessarily privileged. 

As a criminal defendant, it’s critical that you practice being cautious with your words and who you trust. Your criminal defense attorney is someone with whom you must be open and honest. It’s their job to both protect your rights and inform you of them - and they can’t know it if you keep key details about the case from them. If you aren’t sure whether there’s something your attorney needs to know, you could start by asking (in hypotheticals at first, if you’re more comfortable with that). That said, there are some basic guidelines to keep in mind. 

The law allows for several different types of privileged communication.

Privileged communication refers to confidential communications between two parties that are protected from being disclosed or used as evidence in a legal proceeding. Not only are lawyers ethically bound to protect our clients by maintaining confidentiality, but with few rare exceptions, no court can compel us to disclose client communications under threat of penalty.

These communications are granted legal protection to encourage open and honest discussions in certain professional relationships.

The concept of privileged communication varies depending on the jurisdiction and the specific professional relationship involved. However, some common examples of privileged communication include:

• Attorney-client privilege. Communications between our Fort Lauderdale criminal defense lawyers and our clients (or prospective clients) are generally considered privileged. This ensures clients can openly talk to their attorney about legal matters central to their rights and best interests. This includes work product generated in the course of preparing for litigation/a trial. There are exceptions for situations involving attorneys potentially enabling or aiding commission of a crime or fraud OR attorneys knowing of a plan to commit either of these. (The Florida Supreme Court in 2018 strengthened attorney-client privilege when the client is a fiduciary, but that generally doesn’t apply in criminal cases.)
• Doctor-patient privilege. Conversations between you and your healthcare provider (including therapists, psychiatrists, etc.) are protected. This is so that patients will feel free to share potentially sensitive information that could impact their physical, mental, or emotional well-being without compromising their privacy. That said, doctors often provide expert testimony and/or documentation as part of criminal cases - which may or may not involve evidence gleaned from treatment or examination of a defendant. A patient might implicitly waive this privilege (only as it pertains to matters causally relevant to the condition at issue) if they file a lawsuit based on their health. Health care professionals can also be compelled to provide medical testimony in certain criminal cases - such as when it concerns the blood-alcohol concentration of a suspected drunk driver. 
• Spousal privilege. Certain communications between spouses may be protected. Typically spouses can refuse to testify against one another. There are some exceptions for situations like domestic violence. 
• Priest-penitent privilege. Communications with your religious leader in the context of a confession or counseling are typically privileged in the eyes of the law.

It’s important to note, however, that all privileged communication is not absolute. There are exceptions and limitations, depending on the circumstances. 

The attorney-client privilege afforded in Chapter 90 of Florida Evidence Codes explains that a client is “any person… who consults with a lawyer with the purpose of obtaining legal services OR who is rendered legal services by a lawyer.” 

That first part means that information you share with an attorney during an initial consultation - even before you technically hire that lawyer, or even if you never do - is generally going to be considered privileged. 

Communications between a client and lawyer are confidential when they aren’t intended to be disclosed to a third party except in furtherance of rendering legal services or those reasonably necessary to transmit communications. 

The attorney-client privilege applies only to attorneys, their staff, and the client. It does not apply to co-defendants or family members. 

There are a few statutory exceptions to attorney-client privilege, but perhaps the one most relevant to our criminal clients is the crime-fraud exception. 

Of course, as criminal clients, you must talk with your attorney about the alleged crime - and trust that those communications are going to be confidential except to the extent it will help you build your case. The crime-fraud exception arises when an attorney is asked to become party to a crime or becomes aware of a plan to commit a crime. 

This often arises in criminal cases with alleged obstruction of an investigation or ongoing prosecution. Examples include:

• Telling your attorney you intend to tamper with/intimidate a witness or destroy evidence. 
• Informing your lawyer you intend to commit perjury by lying in your sworn testimony.
• Asking for help in presenting false evidence to the court. 
• Seeking help hiding assets, particularly with financial crimes. 

These actions are illegal, and your attorney cannot legally or ethically help you. Before you engage in these things, recognize firstly they are crimes. Secondly, if you loop in your lawyer, those communications will not be privileged. 

Triggering the crime-fraud exception means that not only can an attorney be compelled to disclose this information if subpoenaed, but in some cases (missing witnesses, people in danger, serious threats of harm, critical evidence), the attorney may be required to take it upon themselves to report the information. 

Schedule a free initial consultation with The Ansara Law Firm by calling (954) 761-4011.