The attorney-client privilege is one of the oldest and most respected privileges. It was designed to prevent a lawyer from being compelled to testify against his/her client. The purpose underlying this privilege is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others. The privilege covers written and oral communications and protects both individual and institutional clients. The privilege extends from the attorney to include legal office staff that facilitates communications to and from the attorney.
The attorney-client privilege does not apply to every communication with an attorney. For the privilege to exist, the communication must be to, from, or with an attorney, and intended to be confidential. In addition, the communication must be for the purpose of requesting or receiving legal advice. For example, an email or memorandum from one administrator to another concerning a legal matter typically is not privileged because such email is not sent to or from an attorney for the purpose of obtaining legal advice.
II. Florida Sunshine Law Limitations on the Attorney-Client Privilege
As Florida Gulf Coast University is a public corporation of the State of Florida, its right to attorney-client privilege with respect to written communications is more limited than the rights of private organizations or individuals because of Florida's Public Records Law, Chapter 119, Florida Statutes. Generally, the only written communications between University counsel and client that are confidential are communications falling within the "attorney work product exemption." Communications fitting this exemption are those records that are prepared by an agency attorney or at the agency attorney's express direction, that are prepared in anticipation of imminent civil or administrative litigation or proceedings and that reflect a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the University. At the conclusion of the litigation and any appeals, the attorney work product records lose their confidentiality and become public records.
Records relating to insurance and tort claims generally are also confidential and exempt from disclosure.
Because there is no blanket attorney-client written communication privilege for public entities in Florida, University counsel oftentimes must confer with a client and render advice orally in many instances to avoid sensitive written communications possibly being subject to public disclosure.
Oral communications between the General Counsel and individual trustees, administrators, staff or faculty, are privileged when the criteria mentioned above under "Overview" are met. Due to Florida's Open Meetings Law, Chapter 286.011, Florida Statutes, most communications between the Board of Trustees and the General Counsel during a meeting of the Board are not privileged. However, the Board may meet privately with the General Counsel and the President to discuss the matters of litigation as they relate to strategy and settlement.
III. Preserving the Privilege: Maintaining Confidentiality
Communications must be kept confidential for the privilege to apply. If the substance of attorney-client communications is disclosed to persons outside the University - or even to persons within the University who are not directly involved in the matter - the privilege may be extinguished. Your communications with General Counsel or outside counsel representing FGCU should never be discussed with anyone outside FGCU, including family members or friends; within the University such communications should be discussed only with persons who have responsibility for the particular matter.
With respect to email communications, clients should take care before forwarding advice to another party because such action may waive the privilege. Generally, conveying legal advice to persons who are directly involved with a decision on behalf of the University will not void the privilege. Disclosure of significant legal advice to persons without such a need to know should be made only after consultation with General Counsel and other appropriate University administrators.
Since the General Counsel's Office is dedicated to the University as a whole, communications by individual employees to the General Counsel may be disclosed to other administrators or to outside counsel retained to represent or advise the University on a "need to know" basis.
IV. Specific Situations not Covered by the Privilege
The Fact of a Consultation
The attorney-client privilege does not extend to the fact that a consultation between attorney and client occurred, or to the general subject matter of the consultation. It protects only the content of the communications during that consultation. For example, the privilege would not protect the fact that a vice president met with the General Counsel to discuss the development of a particular University contract, but the privilege would protect the discussions between the two persons such as the advice sought or given.
Lawyer in the Room
Sometimes a lawyer is called upon to participate in activities that do not necessarily call for specific legal advice or representation. In those contexts, the attorney-client privilege does not apply. All conversation at a meeting with legal counsel in attendance, for example, is not protected just because a lawyer is in the room. Moreover, where the lawyer is called upon to play a different role (e.g., investigator) and is not acting as a lawyer, the privilege may not apply.
Underlying Facts Shared with an Attorney
The attorney-client privilege protects the content of communications between the client and attorney. However, it does not extend to underlying factual information that the client shared with the attorney during the course of the communication.
Documents Given to an Attorney
Documents do not automatically become privileged simply because they are given to or reviewed by an attorney. Correspondence, which is forwarded to an attorney for a purpose other than obtaining legal advice, is never privileged. As mentioned above, the attorney-client privilege applies in limited circumstances to the written documents of public entities in the State of Florida.
Correspondence with Copies to an Attorney
General correspondence does not become privileged because an attorney is listed among those receiving a copy or "blind" copy. However, if the author is attempting to convey the content of an attorney's advice to others in the organization with a legitimate need to know, the correspondence is privileged as long as the document falls within the scope of protected written communications described above.
Communication in the Presence of a Third Party
The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and therefore are not protected by the privilege.
This is a very generalized discussion of the attorney-client privilege. If you have questions about the attorney-client privilege in your work with FGCU, please call the General Counsel.
In requesting or receiving legal advice concerning University business, be assured that the General Counsel and staff will preserve the privileged nature of all communications.