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Ethics rules

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Ethics rules

  1. 1. SunTrust Bank Building601 ClevelandSt. Suite 800Clearwater, FL Clearwater(727) 441-9030 Tampa(813) 223-6405
  2. 2. ATTORNEY-CLIENT PRIVILEGE First Union National Bank of Florida v. Whitener, 715 Southern 2d. 979 (FLA. 5th DCA 1998).  The privilege belongs to the client and it is the client who may assert it. §90.502  communication not intended to be disclosed to third persons. §90.502(3)(e)  the privilege does not belong to the lawyer, regardless of the client’s presence, a lawyer may assert the privilege on behalf of the client but may not do so on the attorney’s behalf. Southern Bell Telephone and Telegraph Co v. Deason, 632 Southern 2d. 1377 (FLA. 1994).  The burden of establishing is privilege rests on the party asserting the privilege.
  3. 3. Florida Rules of Civil Procedure 1.280 when a party withholds informationotherwise discoverable under the rules of civilprocedure by claiming that it is privileged, theparty must make the claim expressly anddescribe the nature of the documents,communications, or things not produced ordisclosed in a manner that without revealinginformation itself privileged, will enable otherparties to assess the applicability of theprivilege.
  4. 4. Kaye Scholer LLP v. Zalis,878 Southern 2d. 447 (FLA. 3d. DCA 2004) requires the production of a privilege log in order to preserve a privilege. The purpose of this requirement is to identify materials that might be subject to privilege protection so that a court can rule on the applicability of the privilege prior to trial. A blanket statement in a privilege log is insufficient to establish a privilege.
  5. 5. Waiver of the privilege. Section 90.507a person who has a privilege against disclosure of a confidential matter or communication waives the privilege if the person or person’s predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to the disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.
  6. 6. Teleglobe Communications Corporation v. BCE,493 F.3d. 345 (3d Cir. 2007) when attorney/client communications are disclosed regarding a certain matter the existence of a limited waiver with respect to communications on the same, specific matter exists. If a person other than the client, its attorney, or their agent are present, the communication is not made in confidence and the attorney/client privilege does not attach.
  7. 7. HCA Health Services of Florida v. Hillman,870 Southern 2d. 104 (FLA. 2d DCA, 2003)actual bills submitted by any attorney, including dates of legal service, hours charged, and the nature of services performed are deemed discoverable.Finol v. Finol, 869 Southern 2d. 666 (FLA. 4th DCA 2004)indicates that a party’s attorney fee retainer agreement billing andpayment records are not privileged
  8. 8. JOINT DEFENSEAGREEMENTS Their respective clients have interests in common and may assert common defenses or claims
  9. 9. JOINT DEFENSEAGREEMENTS Specifically, in the event that Counsel or his Counsel agree client receives a that, if at any subpoena from any time their person…… client shall no longer have Such Counsel shall interests in immediately notify all common with Counsel… the other parties to this Shall not surrender and agreement, Defense material they shall without permitting all promptly notify affected Counsel an the other opportunity to protect parties to this their respective agreement of interests by motion in that fact court
  10. 10. JOINT DEFENSEAGREEMENTS Does not prevent counsel for any party to this Agreement from cross- examining any other party to this Agreement should that party be a witness in any capacity at any criminal prosecution in this matter
  11. 11. JOINT DEFENSEAGREEMENTS Executed by all attorneys
  12. 12. CHILD HEARSAY Statements of child victims codified in Section 90.803(23) states:  out of court statement  made by a child victim with the physical, mental, emotional or developmental age 11 or less  describing any act of child abuse, neglect, sexual abuse against a child, or any offense involving an unlawful sexual act,  not otherwise admissible,  is admissible in evidence in any civil or criminal proceeding if:
  13. 13.  The court finds in a hearing conducted outside the presence of the jury  that the timing, content, and circumstances of the statement provide sufficient safeguards of reliability. In making of the determination, the court may consider  the mental and physical age and maturity of the child,  the nature and duration of the abuse of offense,  the relationship of the child to the offender,  the reliability of the assertion,  the reliability of the child victim,  and any other factor deemed appropriate; and
  14. 14.  The child either: A. Testifies; or B. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense.  Unavailability requires a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm.
  15. 15.  Townsend v State, 635 So 2d. 949 (FLA 1994)  non-exclusive list for the trial court to consider in evaluating the reliability of a child’s out of court statements under the statute including: 1. consideration of the statement’s spontaneity; 2. Whether the statement was made at the first available opportunity following the alleged incident; 3. Whether the statement was elicited in response to a question from adults; 4. The mental state of the child when the abuse was reported; 5. Whether the statement consisted of a childlike description of the act; and 6. Whether the child used terminology unexpected of a child of similar age.
  16. 16.  Perez v. State, 536 So 2d. 206 (FLA. 1988)  the time that the out of court statement was made relative to the time of the incident charged and the circumstances of the statement are crucial to determination of reliability. State v. Campbell, 664 So 2d. 1085 (FLA. 5th DCA 1995)  specifically excludes from evidence child hearsay statements that describe abuse on a person other than the declarant child. Pardo v. State, 596 So 2d. 665 (FLA. 1992)  both the child and the person to whom the child made the hearsay declaration may testify. Kopko v. State, 577 So. 2d. 56 (FLA. 5th DCA 1991)  at least one repetition of child hearsay is permissible “if the child testifies.”  repetitious child hearsay from multiple witnesses is unfair to a defendant and contravenes the longstanding rule prohibiting the admission of prior consistent statements to bolster a victim’s in court testimony.
  17. 17. CONFRONTATION CLAUSE Crawford v. Washington, 124 S.Ct. 1354 (2004)  states that the protections set forth in the confrontation clause of the 6th Amendment cannot be overlooked. The Supreme Court indicated that permitting testimony based on the amorphous concept of reliability without taking into account the constitutional requirement of confrontation that the statement be subject to cross-examination was erroneous.The court indicated that even if the right to confrontation under the 6th Amendment is not solely concerned with testimonial hearsay, that the primary object, and interrogations by law enforcement officers fall squarely within that class.
  18. 18. §92.53 Videotaping of testimonyof victim or witness under age 16or person with mental retardation.
  19. 19. §92.54 Use of closed circuit televisionin proceedings involving victims or witnesses under the age of 16 or persons with mental retardation
  20. 20. 5th AMENDMENT CANNOT compel incriminating testimony from a person who is in criminal jeopardy. Corporations DO NOT have a 5th Amendment privilege, but individuals within the corporation MAY  Corporate document not afforded 5th Amendment protection  Individual officers cannot be compelled to testify about their own actions on behalf of the Corporate if their actions may be criminal. CANNOT elicit the fact that person asserted their 5 th Amendment privilege in a CRIMINAL CASE CAN elicit the fact that person asserted their 5 th Amendment privilege in CIVIL CASE
  21. 21. QUESTIONS?Pinellas: 727-441-9030Tampa: 813-223-6495Web: www.greeklaw.com

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