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[]
[null,"Prepared By:","Contributors:"]
[null,"Akerman LLP"]
[]
[]
[]
["Lex Mundi Global Attorney-Client Privilege Guide"]
[]
["Report Generated: 5/1/2025"]
[]
["View your report results on next tab"]

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["Question","USA, Florida"]
["Attorney-Client/Solicitor-Client Privilege (ACP)"]
["Is the ACP recognized in your jurisdiction?","Yes.  The following four elements must be established for ACP to apply: (1) a communication; (2) made between privileged persons; (3) in confidence; and; (4) for the purpose of seeking, obtaining, or providing legal assistance to the client.\n"]
["If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure in a civil proceeding?\n\nNote: This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.","N.A\n \n \n"]
["Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?","The elements establishing ACP (listed above) are the same in both civil and criminal proceedings.\n\n\n\nIn certain contexts, government authorities may require disclosure of attorney-client communications and legal work product.  For example, during criminal investigations, authorities may seize files that are potentially subject to ACP or the work product doctrine.  In these circumstances, the government will generally conduct an initial review of the documents with a \"privilege team\" of attorneys not involved in the investigation.  Parties asserting a privilege to any seized documents potentially subject to ACP or the work product doctrine will have an opportunity to assert a claim for privilege before the government begins reviewing the seized documents.  If the privileged information was compelled erroneously by a court or otherwise disclosed without opportunity to invoke privilege, the evidence subject to such privilege is generally inadmissible against the holder of the privilege.  \nSee § 90.508, Fla. Stat. \n\n\n \n"]
["In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP?  (e.g., in the U.S.: the Upjohn approach, control group test, etc.)"," Florida has rejected the \"control group\" test (which generally limits the scope of the privilege to communications with the organization's upper management) and instead adopted the \"subject matter\" test to determine which of the corporation's agents and employees embody the corporate client for privilege purposes.  See S. Bell Tel. & Tel. Co. v. Deason , 632 So. 2d 1377, 1383 (Fla. 1994)).  Under the subject matter test, the organization's privilege may extend to communications between counsel and an organization's employees, regardless of their place in the organizational hierarchy, so long as the following criteria is met (none of which alone are dispositive): \n\n \n\t the communication would not have been made but for the contemplation of legal services; \n\t the employee making the communication did so at the direction of a corporate superior; \n\t the superior made the request as part of the corporation's effort to secure legal services or advice; \n\t the content of the communication relates to the legal services being rendered, and the communication's subject matter is within the scope of the employee's duties; and \n\t the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents. \n \n\n See S. Bell Tel. & Tel. Co. , 632 So. 2d at 1383. \n"]
["Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?","In Florida, a claim of privilege raised by a corporation is subject to a heightened level of scrutiny.  In general, for ACP to apply, in-house counsel must be acting in their capacity as legal professionals when rendering legal advice to the corporation.  ACP does not apply if in-house counsel is merely being asked to provide business advice.\n"]
["Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?","N/A\n"]
["Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?","N/A\n"]
["Is the common interest doctrine recognized in your jurisdiction?","Yes\n"]
["How is the doctrine articulated in your jurisdiction?"," The common interest doctrine is an exception to the general rule that a third party's presence during an attorney-client communication compromises ACP.  It allows separately represented parties to share privileged information with one another and their respective attorneys to further a common legal goal. \n\n The common interest doctrine requires: \n\n \n\t multiple attorneys representing separate parties; \n\t clients with some interest in common; \n\t a sharing of information between attorneys for different clients or a client and the attorney for another client in the group; \n\t circumstances where it is reasonable to assume that disclosure to third parties is not intended; and \n\t information exchanged for the limited purpose of assisting in the common cause. \n\t  \n \n"]
["Must a common interest agreement be in writing?","No, but best practice suggests that it should be. \n"]
["Is litigation funding permitted in your jurisdiction?  Are there any professional rules in this respect?","Despite the lack of guidance from Florida regulators (which has prompted recent calls in the industry for both legislative and judicial involvement), litigation funding is permitted and remains widely available in Florida.\n"]
["Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection","Yes.  Although this appears to still be a developing and novel area of the law, at least one court has ruled that communications with litigation funders are subject to ACP.  \nSee, e.g., In re Int'l Oil Trading Co., LLC, 548 B.R. 825, 833 (Bankr. S.D. Fla. 2016).  \n"]
["Is the crime-fraud exception recognized in your jurisdiction?","Yes.  ACP does not protect a client's communication with an attorney made for the purpose of obtaining advice or assistance to commit what the client knows to be a crime or fraud.\n"]
["What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?","§ 90.502(4)(a), Fla. Stat.\n"]
["Work Product Doctrine/Litigation Privilege (doctrine that protects materials prepared in anticipation of litigation or for trial)"]
["Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?  (In the U.S.:  What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)","Yes.  \nSee Fla. R. Civ. P. 1.280(b)(3) (specifying that materials prepared in anticipation of litigation or for trial or for a party or its representative, including the party’s attorney, are discoverable only upon a showing of need of the materials and undue hardship in obtaining the substantial equivalent by other means)\n"]
["What are the elements of the protection in your jurisdiction?","The work product doctrine protects (1) documents and other materials that are (2) generated by or for a party (3) in anticipation of or preparation for litigation.\n"]
["Other Privileges"]
["Does your jurisdiction recognize an accountant-client privilege?","Yes.  \nSee § 90.5055, Fla. Stat. (a communication between an accountant and the accountant's client is confidential if it is not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of accounting services to the client or those reasonably necessary for the transmission of the communication)\n"]
["Does your jurisdiction recognize a mediation privilege?","Yes.  \nSee § 44.405, Fla. Stat. (all mediation communications shall be confidential)\n"]
["Does your jurisdiction recognize a settlement negotiation privilege?","Yes.  \nSee § 90.408, Fla. Stat. (statements made in negotiations concerning a compromise of dispute is inadmissible to prove liability)\n"]