Complaint of Dr. Boozer against in-house counsel for Ontap Hospital, Joe Sarbanes

1. Complaint of Dr. Boozer against in-house counsel for Ontap Hospital, Joe Sarbanes • Dr. Boozer believed he was represented by in-house counsel, Joe Sarbanes, in relation to the death of a patient while being operated on by Dr. Boozer in the Hospital. • Dr. Boozer admitted to Mr. Sarbanes that he was drunk during the operation and that is why the patient died. • Attorney Sarbanes used this information to help defend Hospital from a claim by the patient’s family. • Dr. Boozer complains Mr. Sarbanes revealed privileged and confidential information, without informed consent, in violation of Rule 4-1.6(a).

2. Complaint of Dr. Boozer against outside litigation counsel for Ontap Hospital, Gerri Spence • Gerri Spence was hired by Hospital as outside litigation counsel to defend Hospital from liability for the death of a patient. • Attorney Spence previously represented Dr. Boozer in a DUI and successfully negotiated a reduced charge and had the records sealed. • During the representation, Dr. Boozer told Attorney Spence that he had operated while drunk. • During a deposition in the Hospital’s case, Attorney Spence asked Dr. Boozer about the DUI and his history of alcohol abuse. • Dr. Boozer complains Ms. Spence revealed privileged and confidential information in violation of Rule 4-1.9(b) and 4-1.9(c).

3. Complaint of Nurse Hatchett against outside litigation counsel for Ontap Hospital, Gerri Spence • Nurse Hatchet, the operating room nurse when Dr. Boozer’s patient died, sent an email to in-house counsel prior to the operation warning that Dr. Boozer had been drunk while operating in the past. • After the death, she also kept hand written notes stating that Dr. Boozer was drunk, which she gave to hospital risk management shortly after the death. • It is alleged that Attorney Spence improperly concealed these documents, which were not adequately disclosed on the privilege log. • Fee Bailey did not discover the existence of the documents until after the trial, when he spoke to Nurse Hatchett. • Nurse Hatchet, upset by the concealment of her statements, complains that Ms. Spence obstructed access to material evidence in violation of Rules 4-3.4(a), 4-3.4(c) and 4-3.4(d).

4. FLORIDA RULE OF PROFESSIONAL CONDUCT 4-1.6(a) A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

5. WHAT IS INFORMED CONSENT Preamble to Chapter 4 of the Florida Rules of Professional Conduct – “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

6. When is the attorney-client relationship formed? • The test “’hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.’” Bartholomew v. Bartholomew, 611 So.2d 85, 86 (Fla. 2d DCA 1992) (quoting Green v. Montgomery County, Ala., 784 F. Supp. 841, 845-46 (M.D. Ala. 1992); see also Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1283 (11th Cir. 2004). • The client’s subjective belief must be reasonable.Id. • No attorney-client relationship when the attorney has no basis to know the prospective client is seeking legal advice or that the lawyer has been retained. Jackson, 372 F.3d at 1283. • Neither formal retainer agreements nor the payment of fees are necessary.Eggers v. Eggers, 776 So.2d 1096, 1099 (Fla. 5th DCA 2001); The Florida Bar v. King, 664 So.2d 925, 927 (Fla. 1995).

7. KEEP IN MIND… Confidential communications made by a potential client with a view toward employing the attorney professionally are privileged even if the attorney is not hired. Keir v. State, 11 So.2d 886, 888 (Fla. 1943).

8. COMMUNICATIONS WITH CORPORATE EMPLOYEES • Communications between corporate counsel and corporate employees are generally privileged. • Criteria adopted in Southern Bell Telephone and Telegraph Co. v. Deason, 632 So.2d 1377 (Fla. 1994): • the communication would not have been made but for the contemplation of legal services; • the employee making the communication did so at the direction of his or her corporate superior; • the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services; • the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties; and • the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

9. TIPS • Follow the Southern Bell criteria • Tell the employee not to disclose any personally confidential information • Disclose that you represent the company and not them personally • Let them know that the information they provide is privileged information of the company • They should not disclose anything they discuss with you other than to their superiors • **Remember the possibility that the information may have to be disclosed

10. RULE 4-1.9 A lawyer who has formerly represented a client in a matter shall not thereafter: use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or reveal information relating to the representation except as these rules would permit or require with respect to a client.

11. WHAT CAN BE REVEALED • Any information if there is informed consent. (Rule 4-1.9 Comments). • Information considered to be “generally known” • widely disseminated by the media to the public • typically would be obtained by any reasonably prudent lawyer • Essential question - but for the representation, would the lawyer know or discover the information • At least one court has stated not all information in public documents should be considered “generally known” – King v. Byrd, 716 So.2d 831, 835 (Fla. 4th DCA 1998) • Court focused on the relevancy of the information to the proceedings and the use of the information by the attorney • E.g., maligning the former client, improper impeachment, etc.

13. Fla. R. Civ. P. 1.280(b)(6) (6) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. Fed. R. Civ. P. 26(b)(A) • Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: • expressly make the claim; and • describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

14. Sufficient Detail – Privilege Log At a minimum, requires identification: 1) Name and job title/capacity of the author 2) Name and job title/capacity of each recipient 3) Date prepared, and if different, date sent/shared with recipient 4) The title and description of the document and 5) Subject matter of document 6) Purpose for which it is prepared or communicated; and 7) Specific basis for claim of privilege Bankers Security Ins. Co. v. Symons, 889 So. 2d 93 (Fla. 5th DCA 2004) Bozeman v. Chartis Cas. Co., 2010 WL 4386826 (M.D. Fla. 2010)

15. Waiver – Duty to File Privilege Log • Failure to submit privilege log by due date for discovery responses does not automatically constitute waiver. If party does not submit privilege log within reasonable time before hearing on motion to compel, trial court can be justified in finding waiver because there is no basis on which to assess claimed privilege. Fifth Third Bank v. ACA Plus, Inc., 73 So. 3d 850 (Fla. 5th DCA 2011); Misui Sumitomo Ins. Co. v. Carbel, LLC, 2011 WL 2682958 (S.D. Fla. 2011). • Where objections that the documents are not “otherwise discoverable” (i.e., irrelevant, burdensome, harassing), no obligation exists to determine whether privileged and thus no duty to file a privilege log. Gosman v. Luzinski, 937 So. 2d 293 (Fla. 4th DCA 2006).

16. Fla. R. Civ. P. 1.285 – Inadvertent Disclosure Florida Rule of Civil Procedure 1.285 • Within 10 days of actually discovering inadvertent disclosure, must serve written notice of the assertion of privilege on party to whom disclosed. • Party receiving notice of assertion of privilege must promptly return, sequester, or destroy the materials specified in the notice, including copies. • Party receiving notice may challenge assertion of privilege based on materials not privileged, lack of standing to assert privilege, untimely notice under this rule or privilege was waived. • In order to challenge claim of privilege, a notice of challenge must be served within 20 days of the service of the original notice of assertion of privilege or lose right to challenge.

17. Fed. R. Civ. P. 26(b)(5)(B) – Inadvertent Disclosure • Party asserting claim of privilege may notify party of the claim and basis for it. • After receipt of notice, must promptly return, sequester, or destroy the specified information, including copies. • Cannot use or disclose information until claim is resolved, and if disclosed before notice was received, must take reasonable steps to retrieve the information. • May promptly present information to court under seal for determination. Factors considered by court in whether privilege waived : 1) Reasonableness of precautions taken to prevent inadvertent disclosure; 2) Amount of time it took to producing party to discover error; 3) Scope of production; 4) Extent of inadvertent disclosure; and 5) Overriding interest of fairness and justice. United States Fidelity & Guarantee Co. v. Liberty Surplus Ins. Co., 630 F. Supp. 2d 1332 (M.D. Fla. 2007).

18. Florida RPC 4-3.4 Comments The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed, or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Subdivision (a) applies to evidentiary material generally, including computerized information. The Florida Bar v. Forrester, 818 So. 2d 477 (Fla. 2002). Defense counsel suspended 60 days and 1 year probation for concealing original document in discovery. Note: suspension appropriate when lawyer knows material information being withheld but takes no remedial action.

19. Employees of Organization – Privilege? Lee Memorial Health System v. Smith, 56 So. 3d 808 (Fla. 2d DCA 2011). Ex parte communication by patient’s attorney with treating physicians permitted in medical malpractice action where (1) treating physicians do not supervise, direct or consult with the lawyers concerning the lawsuit; (2) treating physicians do not have authority to obligate hospital with respect to the lawsuit; or (3) acts or omissions of treating physicians could not be imputed to hospital in connection with the lawsuit. Further, there is no evidence treating physicians are represented by counsel concerning the matter to which the communication relates. Browning v. AT&T Paradyne, 838 F. Supp. 1564 (M.D. Fla. 1993). An “organizational party” is defined as including: (1) managerial employees, (2) persons who acts or omissions may be imputed for liability, and (3) persons whose statements constitute admissions by the corporation.