The Florida Bar Journal 2005-01: Vol 79 Iss 1

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THE FLORIDA
VOLUME 79, NO. 1 JANUARY 2005
BAR JOLRNAL
ADVANCING THE COMPETENCE AND PUBLIC RESPONSIBILITY OF LAWYERS
Navigating in the Wake
of a Seizure: Protecting
immuniit Privileged Documents

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JANUARY 2005 VOLUME 79, NO. 1
Features
BAR JOIRNAL
Navigating in the Wake of a Seizure: Protecting
651 East Jefferson Street Privileged Documents
by George Bedell
Tallahassee, Florida
32399-2300 Judicial Selection in Florida—An Executive Branch
[phone] Perspective
www.FLABAR.org by Raquel A. Rodriguez
www.flcourts.org
Work Product and the Attorney’s Selection Process:
Spoon-feeding the Opposition or Preserving the
Publisher Adversary System?
John F. Harkness, Jr. by Paul D. Breitner
Editor
Cheryle M. Dodd
Associate Editor
Laura L. Johnson
Assistant Editor
Letters
Melinda Melendez
President's Page
Advertising Director Leading by Example
Randy Traynor by Kelly Overstreet Johnson
Sales Associate City, County & Local Government Law
Bruce Mellinger Eenie, Meenie, Miney, Mo ... Who’s To Regulate This Tow?
by James E. Saunders III
Circulation
Georeen Busch
Appeals During and After Arbitration—State and
Published monthly except July/August, Federal Issues
which is a combined issue, by The Florida Bar, by Ceci Culpepper Berman
651 East Jefferson Street, Tallahassee 32399-
2300, telephone [phone]. Periodicals
postage paid at the Post Office in Tallahas¬ QDROs—A Powerful Tool for Child Support Enforcement
see, Florida 32399-2300 and at additional by Timothy C. Voit
mailing offices. The Florida Bar Journal, ISSN
0015-3915, Pub. No. 200-960.
Subscriptions: Florida Bar members re¬ The Ins and Outs of the Florida Estate Tax
ceive the Journal as part of their annual dues by Benjamin A. Jablow
payment. Nonmember suoscriptions are $50
a year; single magazine copies, $5; Septem¬
ber directory issue $45 ($35 to Bar members). The “Unrelated Works” Exception to Workers’
Single copy sales subject to Florida sales tax. Compensation Immunity
Advertising copy is reviewed, but publi¬ by William S. Dufoe
cation herein does not imply endorsement
Real Property, Probate and Trust Law
of any product, service or opinion adver¬
Understanding the Testamentary Effects of Community
tised. Advertising rate cards will be fur¬
nished upon request. Rates available by Property Rules
calling [phone]. by Terrance J. Mullin
Views and conclusions expressed in ar¬
ticles herein are those of the authors and not
Deposing Nonhumans: Corporate Representative
necessarily those of the editorial staff, officials
Depositions in Florida
or Board of Governors of The Florida Bar.
by Andres Rivero and Jorge A. Mestre
The Florida Bar Journal welcomes letters
to the editor. Letters should be no longer than
Books
500 words and may be edited. Letters should
be directed to “Letters to the Editor," The
Florida Bar Journal, 651 E. Jefferson St., Talla¬
hassee, FL 32399-2300 or e-mailed to
[email protected].
’2005 The Florida Bar. Printed in U.S.A.
POSTMASTER: Send change of address to
The Florida Bar, Membership Records, 651 E.
Jefferson St., Tallahassee, FL 32399-2300.
Cover art by Joe McFadden
2 THE FLORIDA BAR JOURNAL/JANUARY 2005
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Letters
President
Kelly Overstreet Johnson An Insured Deserves Better minimize the insured’s total expo¬
President-elect The November article, “Florida’s sure. Since insurance companies are
Alan B. Bookman New Good Faith Duty on an Insurer claims professionals engaged in the
Not to Settle” misses the mark. business of risk analysis, that would
Executive Director
Farinas merely requires an insurer not seem to be asking too much. In
John F. Harkness, Jr.
to investigate and evaluate poten¬ Farinas the carrier operated in a
Board of Governors
tial claims so as to best protect the calculated fashion to minimize its
First Circuit Ross M. Goodman; Second Cir¬ insured. The authors’ assertion that, exposure by indiscriminately paying
cuit Lawrence E. Sellers, Jr., Michael J. “The tensions created by Farinas out the policy limits so it could close
Glazer; Third Circuit Gregorys, Parker; Fourth
Circuit S. Grier Wells, Henry M. Coxe III; Fifth may well need to be addressed by its file and leave its insured twist¬
Circuit William H. Phelan, Jr.; Sixth Circuit An¬ the legislature” is preposterous. The ing in the wind. Instead of minimiz¬
dCrirecwui tB C. hSaarslseos, CM. uErbrabye tBs;. SEiilgvhethrs Cteiirnc;u iSte Rveonbt¬h insured purchases protection when ing the insured’s exposure, the car¬
ert A. Rush; Ninth Circuit Mayanne Downs, purchasing the policy. If complete rier maximized it.
Russell W. Divine, Warren W. Lindsey; Tenth protection is not possible, Farinas The insured deserved better. As
Circuit Robert M, Brush; Eleventh CiRcurr Fran¬
cisco R. Angones, David B. Rothman, Ervin merely requires that the protection the Florida Supreme Court re¬
A. Gonzalez, Jennifer R. Coberly, Henry T. be maximized. minded us in the November 18,
Courtney, Sharon L. Longer, Benedict P
Kuehne, Steven Chaykin; Twelfth Circuit Kim¬ The carrier’s conduct in Farinas 2004, Berges decision: “In exchange
berly A. Bald; Thirteenth Circuit Timon V. was outrageous. It indiscriminately for this relinquishment of control
Sullivan, John F. Rudy II, Gwynne Alice
settled claims and left the insured over settlement and the conduct of
Young; Fourteenth Circuit Clifford W. Sanborn;
Fifteenth Circuit John G. White III, Jerald S. exposed to the largest potential the litigation, the insurer obligates
Beer, Scott G. Hawkins, Amy Lee Smith; Six¬ claim. itself to act in good faith in the in¬
tceueint tAh Clainrc uCi.t JBarmanedst, SJ.r .L, uNpainnoc;y S eWve. nGtereengtho Cirier¬, It then turned around and sought vestigation, handling, and settling of
Henry Latimer, Jesse H. Diner, Frank C. a declaration that—after putting claims brought against the insured.
Walker II; Eighteenth Circuit Clifton A. the insured in the maximum posi¬ Indeed, this is what the insured ex¬
McClelland, Jr.; Nineteenth Circuit Harold G.
Melville; Twentieth Circuit J. Christopher tion of peril—it did not even owe the pects when paying premiums. Bad
Lombardo, A. Lawrence Ringers; Out-of-State insured a defense. As the article’s faith jurisprudence merely holds
Richard A. Tanner, Ian M. Comisky, Gary J.
Leppla, Brian D. Burgoon; President YLD citation to Marsh indicates, the insurers accountable for failing to
Michael J. Faehner; President-elect YLD Jamie carrier’s liability is not absolute. It fulfill their obligations.”
B. Moses; Pubuc Members, Solomon L. Badger merely has to engage in settlement The holding in Farinas is
III, J. Blair Culpepper.
practices that eliminate (if possible) unsurprising.
Editorial Board the risk to the insured and, if com¬ Michael J. Smith
plete protection is not possible, Palm Beach
Chair David R. Cassetty, Coral Gables;
Vice Chair Robert C. Downie II, Tallahassee;
Vice Chair Amy E. Osteryoung, St.
Augustine; Ashish G. Airan, Ft. Lauderdale;
Oath of Admission to The Florida Bar
Nader F. Anise, Boca Raton; Aurora A.
Ares, Miami; Kristi L. Bergemann, West
Palm Beach; Allison E. Butler, Stuart; John The general principles which should ever control the lawyer in the practice of
M. Byrne, Boca Raton; David E. Cannella, the legal profession are clearly set forth in the following oath of admission to the
Orlando; Carrol Y. Cherry, Tallahassee; Bar, which the lawyer is sworn on admission to obey and for the willful violation
Susan G. Chopin, West Palm Beach; to which disbarment may be had.
Richard B. Collins, Tallahassee; Jennifer A. "I do solemnly swear:
Dietz, Tampa; Annette C. Escobar, Miami; "I will support the Constitution of the United States and the Constitution of the
David J. Federbush, Bethesda, MD; Pearl State of Florida;
Goldman, Ft. Lauderdale; Valerie G. "\ will maintain the respect due to courts of justice and judicial officers;
Itkoff, Miami; Jason K. Kellogg, Miami; Erin "I will not counsel or maintain any suit or proceedings which shall appear to
M, Larrinaga, Tampa; Jay Paul Lechner, me to be unjust, nor any defense except such as I believe to be honestly debat¬
Tampa; Jason S. Lichtstein, Ft. Lauderdale; able under the law of the land;
Brittany A. Long, Tallahassee; Wendy S. “I will employ for the purpose of maintaining the causes confided to me such
Loquasto, Tallahassee; V. Julia Luyster, means only as are consistent with truth and honor, and will never seek to mis¬
Hollywood; Lisa M. Macci, Boca Raton; lead the judge or jury by any artifice or false statement of fact or law;
Christina C. McAdams, Tampa; Elizabeth
“I will maintain the confidence and preserve inviolate the secrets of my cli¬
A. McRae, Tampa; Mary S, Miller,
ents, and will accept no compensation in connection with their business except
Tallahassee; Michael G. Moore, Miami;
from them or with their knowledge and approval;
Rima Y. Mullins, Miami; Tamela I. Perdue,
"I will abstain from all offensive personality and advance no fact prejudicial
Tallahassee; Amy D. Ronner, Opa Locka;
Richard A. Sachs, Ft. Lauderdale; Michael to the honor or reputation of a party or witness, unless required by the justice of
Shelley, Coconut Grove; Julie S. Sneed, the cause with which I am charged;
Tampa; Leslie K.R. Stein, Tampa; Thomas “I will never reject, from any consideration personal to myself, the cause of
W. Young, Orlando; Board Liaison: Charles the defenseless or oppressed, or delay anyone's cause for lucre or malice. So
Chobee Ebbets, Daytona Beach. help me God."
4 THE FLORIDA BAR JOURNAL/JANUARY 2005
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Leading by Example
A
s Bar president, I want to these leadership positions as well
ensure that our members as provided opportunities for people
feel welcome and in¬ who had not previously been able
cluded in the many ac¬ to serve on a Bar committee due to
tivities of The Florida Bar, and in limited vacancies. Notices of avail¬
order to improve the Bar’s commu¬ able committees and other posi¬
nication with all members, I ap¬ tions are routinely placed in the
pointed a Membership Outreach Bar News, on the Bar’s Web site,
Committee to communicate with and sent to various bar associations
our membership and encourage par¬ soliciting interest.
ticipation in Bar programs and com¬ This month, you will see in the
mittees from lawyers representing Bar News an announcement re¬
diverse backgrounds, viewpoints, garding the opening of the commit¬
and areas of practice. This commit¬ tee appointment process. Please
tee, chaired by President-elect Alan apply. We would like more people
Bookman, met in early October to involved and more representative
review how The Florida Bar mem¬ viewpoints, but we cannot accom¬
bership can reflect the state’s di¬ plish this alone. However, you can
verse population by 2014. help your chances of being ap¬
Despite past outreach efforts, pointed to a committee next year
many of our lawyers still choose not and the legal profession for discus¬ by providing a short note to Presi¬
to participate in Florida Bar service. sion. One of the suggestions from dent-elect Bookman about your
If it is by choice, that decision is cer¬ committee members prevailed: two- reasons for wanting to serve.
tainly understandable as we all way communication. We should all embrace diversity
have a limited amount of time and National Bar Association Florida in its broadest sense and recognize
must prioritize how we want to Chapter President Ben Crump its true value to the Bar and the
spend it. However, lack of participa¬ agreed that both sides (the Bar lead¬ world at large. It is in our differences
tion should not be due to a percep¬ ership and minority members) need that we have strength because each
tion that The Florida Bar is a “closed to improve their dialogue. person’s point of view is unique. You
shop” or not welcoming of new ideas Alan Bookman and I are carrying and I may hear the exact same mes¬
and people from varied backgrounds, out that suggestion by attending as sage, but assign two totally differ¬
because that is not true. many speciality bar functions as we ent meanings. The sharing of those
We are fortunate to live in a state can to show our commitment to reach varied perceptions in a forum that
with a rich cultural population and out to all segments of the legal com¬ has the ability to lend shape to the
our legal profession should reflect munity in our state. future of the legal profession will
that diversity. In April, former Bar When I made my committee ap¬ enrich not only our profession, but
President Miles McGrane and I par¬ pointments earlier this year, I put a also each of us personally. Nonethe¬
ticipated in a symposium to develop minority on every committee that I less, these words mean nothing if
a plan to improve the Bar’s commu¬ could; however, in order to do this, I there are no accompanying actions
nication with minority groups and to had to recruit people. There contin¬ to accomplish these goals. We must
encourage their involvement in sec¬ ues to be difficulty in attracting mi¬ foster an environment that includes
tions and committees of The Florida nority applications for judicial nomi¬ rather than excludes lawyers in our
Bar and its Board of Governors. nating commission openings. Bar, and I ask for your help in ac¬
At the October Membership Out¬ Several years ago, the Bar Board complishing this mission.
reach Committee meeting, Alan of Governors adopted term limits for
Bookman presented the committee service. This has enabled
symposium’s recommendations per¬ the incoming president-elect to im¬
taining to the judiciary, law schools, prove diversity representation in Kelly Overstreet Johnson
6 THE FLORIDA BAR JOURNAL/JANUARY 2005
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Navigating in the Wake of a Seizure
Protecting Privileged
Documents
by George Bedell
If you got a warrant, I guess you’re gonna come in. probably not be sufficient to ensure the survival of the
S Truckin’ privilege. The longer the documents are out of the client’s
Garcia, Hunter, Lesh and Weir
possession, the more attenuated a claim of privilege be¬
comes. Florida appellate courts have not yet addressed
tate prosecutors no longer reserve search war¬ whether timing of the assertion of the privilege affects
rants for investigations of drug dealers, gamblers, its viability. There are, however, two opinions from fed¬
and houses of prostitution. In addition to the high eral circuit courts that illustrate the perils inherent in
profile federal cases such as the Columbia/HCA, delay.
Enron, and HealthSouth prosecutions, an increasing The Third Circuit Court of Appeals held that delay in
number of state criminal cases begin with the execution seeking a judicial determination of a claim of attorney
of search warrants on businesses. When the warrant work product privilege amounted to a waiver of the privi¬
authorizes the seizure of documents, attorney-client cor¬ lege. In re: Grand Jury, 138 F.3d 978 (3d Cir. 1998). Early
respondence and attorney work product1 may not be given in a kidnapping investigation, Capano, the suspect, who
sanctuary. Indeed, the warrant may specifically autho¬ was an attorney, retained counsel. Capano’s attorney
rize the seizure of litigation materials or attorney work instructed him to write a time-line of his activities be¬
product. Inadvertent production of materials can also ginning the date the victim disappeared. After writing
lead to a waiver of the privilege. This article discusses the time-line, Capano put it in a file which he put in the
issues that arise following the seizure of privileged ma¬ office of Frey, one of his partners. The government later
terials, the importance of a prompt motion by client’s got the file containing the time-line from Frey pursuant
counsel to return the privileged materials seized, and to a grand jury subpoena. Eight days after the govern¬
the crime-fraud exception to the privilege. Also included ment received the time-line, Capano’s attorney wrote to
are some precautions clients can take to minimize the the prosecutor notifying him of Capano’s belief that the
damage done by a seizure. file contained privileged information. The prosecutor dis¬
agreed with Capano’s counsel and told him to “take the
Assert the Privilege Early issue up with the court.” Id. at 980. Over the next three
and Often or Risk Waiver months, Capano’s attorney made additional attempts to
While Florida law may regard the attorney-client privi¬ persuade the government to return the file during tele¬
lege as “an absolute privilege, rather than a qualified phone conversations and with a second letter to the pros¬
privilege,”2 the privilege will not survive in the face of ecutor. Four months after the government took posses¬
neglect even if the government fails to establish an ex¬ sion of the file, Capano’s attorney filed a motion to compel
ception. If the material seized or inadvertently produced the government to return the file. While the trial court
is to be protected, the privilege must be asserted early recognized that the file contained attorney work prod¬
and often. A single notice to the agent or prosecutor will uct, it declined to order the return of the file, finding
8 THE FLORIDA BAR JOURNAL/JANUARY 2005