Opinion
C.A. NO. 2:13-CV-1831-DCN C.A. NO. 2:13-CV-3595-DCN C.A. NO. 2:14-CV-4067-DCN
10-24-2018
WENDY WELLIN, as the Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, PLAINTIFF, v. PETER J. WELLIN, et al., DEFENDANTS, LARRY S. MCDEVITT, as Trustee of the Wellin Family 2009 Irrevocable Trust, PLAINTIFF, v. PETER J. WELLIN, et. al., DEFENDANTS, PETER J. WELLIN, et. al., PLAINTIFF, v. WENDY WELLIN, individually and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, DEFENDANT.
SPECIAL MASTER'S REPORT AND RECOMMENDATION RE: WELLIN CHILDREN'S MOTION TO COMPEL, OR IN THE ALTERNATIVE, FOR IN CAMERA REVIEW
(ECF No. 718 in 2:13-CV-1831)
Currently before the undersigned is the motion filed by Peter J. Wellin, Cynthia W. Plum. Marjorie W. King, and Friendship Management, LLC (collectively, the "Wellin Children") to compel production of two documents previously clawed back by Wendy Wellin ("Wendy"). Specifically, the Wellin Children challenge Wendy's assertions of privilege and claw-backs of the July 2, 2011 email bates labeled WCHW - CANDLER 000437, and the July 12, 2011 email bates labeled Hart-Lane000217 - 000218. These two emails were introduced as Exhibit 28 and Exhibit 31, respectively, during the deposition of Wendy's estate planning attorney, Richard Candler ("Candler"), on March 28, 2017. Based on Wendy's counsels' communications with Candler and Candler's testimony during the deposition, the emails were clawed back by Wendy's counsel under the theory they are protected by the attorney-client privilege and/or applicable exceptions to waiver of the same. For ease of reference, these email documents are hereinafter referred to as "Exhibit 28" and Exhibit 31" in this Report and Recommendation.
Wendy argues that Exhibit 28 and Exhibit 31 were properly clawed back pursuant to Paragraph 11 of the Court's Second Amended Consent Confidentiality Order (ECF No. 359). Paragraph 11 of the Confidentiality Order allows for documents to be clawed back in the case of inadvertent disclosure of privileged information. ECF No. 359. In the event of a dispute regarding the application of privilege to a document that has been clawed back, the Confidentiality Order allows the parties "to challenge a supplying party's claims that information is privileged or protected" and "request[] the Court to determine whether the document or information is privileged or protected" via "in camera review[.]" Id. at 10-11. The Confidentiality Order further provides that "[t]he burden of proving the information or document is privileged or protected shall remain with the party asserting the privilege or protection." Id. at 11. Counsel for Wendy provided the undersigned copies of Exhibit 28 and Exhibit 31 for in camera review during the hearing on this matter on March 7, 2018. The undersigned has reviewed the Exhibits, as well as the applicable law and the arguments of counsel, and makes the following Report and Recommendation to the Court.
Except as further described herein, all references to ECF numbers are to Case No. 2:13-cv-1831-DCN.
The motion is before the undersigned, sitting as Special Master, pursuant to the February 17, 2015 Order of the United States District Court for the District of South Carolina, Charleston Division, Hon. David C. Norton presiding. See ECF Nos. 270, 258, and 35. The above captioned lawsuits involve multiple issues surrounding the handling and disposition of the assets, trusts, and estate of Keith S. Wellin (Keith). The factual allegations and procedural histories of these cases are extensively outlined in the Order of Judge Norton issued in Wellin I, Case No. 2:13-cv-1831-DCN, ECF No. 158, filed on June 28, 2014, and in the Amended Report and Recommendation of the Special Master, ECF No. 320, filed on July 31, 2015.
The electronic case filing numbers refer to entries submitted in C.A. Nos. 2:13-cv-1831-DCN, 2:13-cv-3595-DCN, and 2:14-cv-4067-DCN respectively. These cases have been consolidated for pre-trial purposes. As previously set forth, all future references to electronic filing numbers will be directed to filings in Case No. 2:13-cv-1831-DCN only.
FACTS AND ARGUMENTS OF COUNSEL RELEVANT TO THE PRESENT
MOTION
Candler, an estate planning, administration, and tax planning attorney who represented Wendy between February 2003 and his retirement in 2015, was deposed as a fact witness to this litigation on March 28, 2017. It is undisputed by both parties that Candler never represented Keith Wellin ("Keith"). However, Candler testified that he was authorized by Keith through Keith's estate planning attorney, Tom Farace ("Farace"), to review portions of Keith's estate plan that affected Wendy for use in advising her. Candler also testified that he represented Heather Lane ("Heather"), Wendy's daughter, and provided estate planning advice to her as to her own estate. During the deposition, counsel for the Wellin Children examined Candler on some thirty-five (35) exhibits. Exhibits 28 and 31 were then clawed back by counsel for Wendy based on Candler's testimony.
1. Exhibit 28 and Arguments of Counsel
Exhibit 28 is an email sent from Wendy to Candler dated July 3, 2011. The question posed during the deposition as to this document was, "And is that work that she's referring to having a — an independent person appointed to manage Keith's assets, institution, or person?" Exhibit 28 was then clawed back following a privilege discussion between counsel for Wendy and Candler, which led Wendy's counsel to a determination that the document was protected by the attorney-client privilege. On November 8, 2017, counsel for the Wellin Children sent Wendy's counsel a letter requesting clarification as to whether Exhibit 28 contains a request that Candler perform legal work on behalf of Wendy or on behalf of Keith. On November 16, 2017, Wendy's counsel responded and explained the context of Exhibit 28:
As to Exhibit 28, the stated reason for the claw back was attorney-client privilege. As Mr. Candler testified, he did not have an attorney-client relationship with Mr. Wellin. And as Mrs. Wellin testified, for most of her marriage, she acted as a secretary for Mr. Wellin, and he liked things to be done quickly when he asked for them. The context of this particular email exemplifies that role of Mrs. Wellin. Mr. Wellin wanted something done, and she asked Tom Farace, but she received his out-of-office reply, so in an effort to get it done, she attempted to ask advice of her own counsel. Ultimately, Farace visited Keith in July 2011 in response to the
email Mrs. Wellin originally sent him, and Mr. Wellin's changes were made in August 2011. However, Mrs. Wellin's counsel did not make those changes; instead, he reached out to Tom Farace. Therefore, it does not matter that Mrs. Wellin was reaching out on Mr. Wellin's behalf at the time because the relationship would have had to have been created by Mr. Wellin and Mr. Candler, and no such relationship was created or acted upon. Therefore, the email was properly clawed back as it is protected by attorney-client privilege.Letter dated November 17, 2017 (attached as "Exhibit B" to Wellin Children's Motion).
In opposition to Wendy's counsel's claim that Exhibit 28 is protected by the attorney-client privilege, counsel for the Wellin Children make four general arguments as to why Exhibit 28 should not have been clawed back and the attorney-client privilege does not apply.
First, they emphasize that Wendy admits she was not emailing Candler in her capacity as Candler's client, but rather her capacity as Keith's "secretary" or agent. Moreover, Wendy admits that no attorney-client relationship between Candler and Keith "was created or acted upon." Accordingly, the Wellin Children contend Exhibit 28 is not a communication made on behalf of a client to the client's attorney such that the attorney-client privilege could apply.
Second, the Wellin Children argue that, to the extent a privilege does apply, this court has already held that Keith waived privilege over his communications with counsel regarding his estate planning matters prior to 2013 because Keith consistently shared, and authorized his counsel to share, all such communications with his children. See ECF No. 336 at 5-10; see also ECF No. 366 (Order adopting Report and Recommendation). Although the Court's prior holding was focused on communications between Keith and Farace, the Wellin Children contend that the same logic would apply to Exhibit 28. Specifically, they assert that there is no basis to conclude that Keith's willingness to share all matters related to his estate planning extended to communications with Farace, but did not extend to communications regarding the same subject matter that were made by Wendy on Keith's behalf solely because Farace was out of his office. As previously set forth by the undersigned:
Keith's undisputed desire to share his estate planning communications to and from Farace with his children warrants a finding of waiver of the attorney-client privilege in this instance. To the extent such communications were undertaken by Ms. Wellin on behalf of Keith and regarding his estate planning, they should be disclosed.ECF No. 336 at 9. Accordingly, the Wellin Children contend that any attorney-client privilege that exists as to Exhibit 28 has been waived.
Third, and closely related to the above, the Wellin Children argue that the record demonstrates that, prior to 2013, Keith had no intention of confidentiality with respect to communications relating to his estate planning for similar reasons that any privilege that did exist was waived—i.e. because Keith consistently shared, and authorized his counsel to share, all such communications with his children such that there was no intention of confidentiality as to the communications. Because the attorney-client privilege only applies where an intention of confidentiality exists, the attorney client privilege does not apply to Exhibit 28, according to the Wellin Children.
Finally, the Wellin Children point out that the testamentary exception has been applied to communications made by Keith or on Keith's behalf relating to his estate planning. See ECF No. 393. Accordingly, to the extent Exhibit 28 relates to Keith's estate planning, the Wellin Children argue it is subject to the testamentary exception to the attorney-client privilege (if privilege attached in the first place). Although this Court's previous testamentary exception ruling was directed toward the production of materials in the Bennet file, the Wellin Children argue that the testamentary exception is not limited to the file of a single law firm, and the rationale for applying the exception applies equally to communications made on Keith's behalf to other lawyers.
In support of their argument that Exhibit 28 was properly clawed back, counsel for Wendy argue that the email is protected from disclosure by the attorney-client privilege, as it represents a confidential communication between a client (Wendy) and her attorney (Candler) that was not disclosed to any third party. Although Wendy requested legal advice on behalf of Keith, Candler neither represented Keith nor performed any work for him, Wendy's counsel further avers. Accordingly, counsel for Wendy claim that "any legal advice Mrs. Wellin requested would have been directed to her for the purpose of her informed decision making as opposed to Mr. Wellin directly." ECF No. 722 at 7.
Counsel for Wendy further contend that the Wellin Children's arguments as to Exhibit 28 and waiver via third-party disclosure, which mirror the analysis applied from previous rulings in this case, are not persuasive. By making these arguments, counsel for Wendy asserts that the Wellin Children are attempting to expand prior rulings of this Court into a blanket waiver of the attorney-client privilege. Specifically, they point out that the Court's previous decision relating to waiver of the attorney-client privilege were directed solely towards Keith's communications (or communications made on Keith's behalf) with Farace and the law firm Nixon Peabody.
Moreover, Wendy's counsel contends that the testamentary exception only applies to statements made from the deceased to his counsel about the execution of his will or similar document. Because Candler was not Keith's attorney and the subject matter of Exhibit 28 does not include discussion of the execution of a will or similar document, it does not fall within the testamentary exception, according to Wendy's counsel. Instead, they maintain that Exhibit 28 is a confidential communication between Wendy and her attorney requesting legal advice that was not intended to be, and was not, shared with a third party. As such, Wendy claims Exhibit 28 is protected from discovery by the attorney-client privilege and was properly clawed back during Candler's deposition.
2. Exhibit 31 and Arguments of Counsel
Exhibit 31 is an email from Wendy to Candler dated July 19, 2011, to which Wendy also copied her daughter, Heather, as a recipient. During Candler's deposition, Exhibit 31 was clawed back on the stated basis that Candler's representation of both Wendy and Heather constituted a "joint representation" such that Heather's inclusion to the communication did not constitute a waiver of Wendy's attorney-client privilege. Wendy's counsel also explained and clarified their position in regards to Exhibit 31 in their letter to opposing counsel dated November 16, 2017:
As to Exhibit 31, my objection was "And I'm going to claw this back because I found out today about the joint representation. So I'm going to claw that back." I understand your position to be is [(sic)] that Exhibit 31 should not have been clawed back because the interest between Mrs. Wellin and Heather Lane was not identical and because the representation was concurrent. While we can agree that the representation of Mrs. Wellin and Heather Lane was not joint as to Mrs. Wellin's estate planning, Candler did represent them concurrently regarding estate matters, and their interests are identical in this email; therefore, if not the joint client doctrine, the common interest exception to waiver of the attorney-client privilege applies. Specially, Mrs. Wellin and Heather Lane's interests are identical in this correspondence because Mrs. Wellin included Heather to find out whether Heather was interested in planning around an asset of Mrs. Wellin's, specifically the house in Florida. Mrs. Wellin wanted to know whether Heather wanted the home as part of Mrs. Wellin's estate should something happen to Mrs. Wellin. Moreover, the email was properly clawed back because federal common law supports the extension of privilege to agents, and familial relationships can certainly form the basis of an agency relationship. As observed by the Middle District of North Carolina, "[c]ases finding an agency relationship sufficient to uphold an attorney-client privilege involve relationships with familial or professional aspects." Atwood v. Brulington Indus. Equity, Inc., 908 F. Supp 319, 323 (M.D.N.C. 1995)(citing In re Grand Jury Proceedings, 947 F.2d 1188 (4th Cir. 1991)
(accountant-client relationship) and Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984) (father-son relationship)). The key question in determining the existence of a privileged communication is whether the client reasonably understood the conference to be confidential, and including Heather in this aspect of her estate planning was meant to [be] confidential.Letter dated November 17, 2017 (attached as "Exhibit B" to Wellin Children's Motion).
In conjunction with the above letter of counsel, Wendy's Response in Opposition to the present Motion further sets forth and expands the reasons Wendy's counsel believes Exhibit 31 was properly clawed back under the Confidentiality Agreement.
First, Wendy's counsel argues that Exhibit 31 is protected from disclosure by the express terms of the Florida attorney-client privilege statute. Wendy's counsel contends that Florida privilege law controls by application of the choice of law analysis utilized by the Court previously in this litigation. (See ECF No. 503, pp. 7-20). Under Florida law, a communication remains confidential if it is "not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication." Fla. Stat. § 90.502(1)(c). According to Wendy's counsel, the disclosure of the communication set forth in Exhibit 31 to Heather was in furtherance of the rendition of legal services to Wendy, as Wendy was seeking a dialogue with Candler and Heather so that she could make an informed decision about an asset of her estate, the response to which would assist Candler in offering legal advice to Wendy as to her potential estate. Furthermore, Wendy contends there was a mutual intent and understanding between the parties to Exhibit 31 that the communication was to remain confidential. Accordingly, Wendy argues that Exhibit 31 is protected from discovery by the express terms of the Florida attorney-client privilege statute.
The choice of law analysis is discussed in greater detail and applied in the following section.
Wendy's counsel also cites to a variety of case law from various jurisdictions, including Florida and South Carolina, for the proposition that third-party disclosure of communications that otherwise would be subject to the attorney-client privilege does not necessarily destroy privilege. Generally, these cases relate to what is described by the United States Bankruptcy Court for the Southern District of Florida as the "agency exception" to waiver of the attorney-client privilege in a case that is also cited by Wendy's counsel in support of their position. In re Int'l Oil Trading Co., LLC, 548 B.R. 825, 834, 62 Bankr. Ct. Dec. 145 (U.S. Bankr. S.D. Fla. 2016). In these cases cited by Wendy's counsel, courts have variously applied the agency exception to circumstances where non-attorney professionals and non-professionals such as accountants, interpreters, or certain family members of the client are present during attorney-client commutations for purposes of facilitating ease of communication and effective representation between the client and attorney.
Witte v. Witte, 126 So. 3d 1076, 1078, 37 Fla. L. Weekly D 786 (Fla. Dist. Ct. App. 4th Dist. 2012) (noting "the presence of a close family member does not, in and of itself, waive the attorney-client privilege" in remanding a matter for a factual determination as to whether client's family member's presence to assist in communication between lawyer and client "was reasonably necessary for the transmission of the communications.")); United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961) (finding that an accountant's presence while the client relayed a complicated tax story to the lawyer did not destroy the privilege because the accountant's presence was useful "for the effective consultation between the client and the lawyer"); AVX Corp. v. Horry Land Co., No. 4:07-CV-3299-TLW-TER, 2010 WL 4884903, at *7-8 (D.S.C. Nov. 24, 2010) (acknowledging the Kovel doctrine); In re New York Renu with Moistureloc Prod. Liab. Litig., No. CA 2:06-MN-77777-DCN, 2008 WL 2338552, at * 19-26 (D.S.C. May 8, 2008) (acknowledging the Kovel doctrine).
In further support for this position, Wendy's counsel cites to the First Circuit case of Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984), which stands for the proposition that the attorney client privilege was not waived in a situation in which a father "acting in a normal and supportive parental fashion" was present with his son during a conference with a potential attorney wherein he "explained in full detail the events that happened on the night of [his] arrest." (previously cited in letter from Wendy's counsel, attached to Wellin Children's motion as Exhibit B).
Second, Wendy argues that the common interest doctrine is an exception to the attorney-client privilege, which applies to Exhibit 31 because Candler represented both Wendy and Heather concurrently regarding their respective estates. Quoting Florida case law, Wendy notes that "the common interest exception to waiver is a common law doctrine by which Courts uphold attorney-client privilege, in spite of the disclosure of attorney-client communications to a third party, because that third party shares a 'common interest' with the client." ECF No. 722 at 11 - 12 (quoting in part In re Int'l Oil Trading Co., LLC, supra, 548 B.R. at 832). Because Candler represented Wendy and Heather concurrently regarding their respective estates and neither Florida nor South Carolina law expressly requires that individuals have separate counsel for the common interest doctrine to apply, Wendy argues that Exhibit 31 is privileged and confidential pursuant to the common interest exception to waiver of the attorney-client privilege.
Finally, to the extent South Carolina privilege law is applicable, rather than Florida law, Wendy's counsel contends the communication is protected from disclosure by South Carolina's own "agency exception" to waiver of the attorney-client privilege. Specifically, citing to State v. Hitopoulus, 279 S.C. 549, 550, 309 S.E.2d 747, 748-49 (1983) and State v. Thompson, 329 S.C. 72, 75, 495 S.E.2d 437, 438-39 (1998), Wendy's counsel outlines that the South Carolina Supreme Court devised a two-factor balancing test to determine whether the attorney-client privilege extends to communications between a client and a non-lawyer: (1) the need of the attorney for the assistance of the non-lawyer to effectively represent his client, and (2) the increased potential for inaccuracy in the search for truth if the trier of fact is deprived of valuable witnesses. According to Wendy's counsel, Heather's inclusion to Exhibit 31 and her assistance as to the subject matter of the communication by way of her response to the same would be necessary to Candler for him to effectively advise Wendy as to her estate. As the communication was confidential in nature and Heather was "acting as an agent to respond to Candler regarding her desire for a potential asset in her mother's estate[,]" counsel for Wendy argues that Exhibit 31 falls into the exception delineated by the Supreme Court in Hitopoulus and Thompson.
Although Wendy's counsel does not specifically elaborate the position in the Response in Opposition to the present Motion, it is clear that they assert that Exhibit 31 is also protected from disclosure under the joint client doctrine based on the previously-cited letter of counsel and their citation to certain cases. Accordingly, the applicability of the joint client doctrine is also applied and analyzed as to Exhibit 31 in this Report and Recommendation.
Counsel for the Wellin Children attacks each of these positions in turn. First, they argue that Heather's inclusion as a recipient of the communication set forth in Exhibit 31 destroyed any intention of confidentiality such that the attorney-client privilege would not apply. Even if the attorney-client privilege did attach, the Wellin Children's counsel asserts that confidentiality was waived by the inclusion of a third-party to the communication under the general principles of attorney-client privilege law.
Moreover, the Wellin Children argue there is no evidence that Heather acted as Wendy's agent for purposes of the agency exception to waiver of the attorney-client privilege. Citing to South Carolina law, counsel for the Wellin Children contend that the test to determine agency is whether or not the purported principal has the right to control his alleged agent. ECF No. 718 at 7 (citing to Peoples Fed. Sav. & Loan Ass'n v. Myrtle Beach Golf & Yacht Club, 310 S.C. 132, 145, 425 S.E.2d 764, 773 (Ct. App. 1992). Citing to Florida law, the Wellin Children's counsel also assert that the agent must consent to the purported efforts of the principal to manifest control. Id. at 8 (citing to McCaskill v. Navient Sols., Inc., 178 F. Supp. 3s 1281, 1292 (M.D. Fla. 2016). Ultimately, they claim the agency exception does not apply to Exhibit 31 because there is no evidence that Heather ever manifested consent to be subject to the control of Wendy or to act on her behalf.
Next, counsel for the Wellin Children summarily dismiss Wendy's claim that the common interest exception would apply to Exhibit 31. Specifically, citing to a previous decision by the Court in this case, the Wellin Children contend that the common interest doctrine only applies when parties with separate lawyers consult together under the guise of a common interest or defense. Id. (citing to ECF No. 502 at 33-34). Because Exhibit 31 involves a communication between two clients of the same attorney, the Wellin Children contend that the common interest exception to waiver of the attorney client privilege does not apply.
Counsel for the Wellin Children also assert that the joint client exception does not apply to Exhibit 31. They note that, under both Florida and South Carolina Law, the joint client doctrine (as well as the common interest doctrine) is typically only applied in the context of communications that take place during existing litigation or prior to anticipated litigation. Id. at 8- 9. However, they concede that some courts have applied the joint client doctrine in non-litigation context where two or more clients retain a single attorney to assist them on a single matter in which they share a common legal interest. Id. at 9. Nevertheless, citing to Duplan Corp. v. Deering Miliken, Inc., 397 F. Supp 1146, 1174-75 (D.S.C. 1974), the Wellin Children contend that this non-litigation exception is only applicable in two scenarios: (1) where a communication is shared with multiple clients because one client owes a duty to the other client that necessitates the sharing of information, or (2) where joint clients of a single attorney are entering into a direct transaction with one another and therefore need to share information. Id. at 9- 10. Additionally, the Wellin Children note that other jurisdictions have required a higher degree of "commonality of interest" as to the subject matter of the communication between co- clients than is required under the common interest doctrine. Id. at 10-11. Because Exhibit 31 is an email that was sent at a time when Wendy does not claim that she or Heather were involved in or anticipating litigation, the standard application of the joint client exception would not apply, according to counsel for the Wellin Children. Moreover, counsel for the Wellin Children note that Wendy does not claim that she and Heather jointly retained Candler, or that Candler was assisting Wendy and Heather on a single matter after being retained separately. Along similar lines, they argue that Wendy does not claim that she shared information with Heather because Heather owed a duty that necessitated her being made aware of the information contained in Exhibit 31, or that she and Heather were in a direct transaction with one another.
Finally, the Wellin Children's counsel argue that Heather's potential interest in inheriting or otherwise receiving from Wendy the Florida home is separate and distinct from Wendy's interest in potentially devising the home to Heather for purposes of the joint client doctrine. Counsel for the Wellin Children note that courts are inconsistent in the degree of commonality of interest required under the various jurisdictional applications of the joint client doctrine, but ultimately argue that Exhibit 31 is beyond the outer limit of the joint client doctrine, however it may be defined.
APPLICABLE LAW
I. Choice of Law
Before addressing the merits of the Wellin Children's Motion, the undersigned must first determine which state's law governs Wendy's assertion of privilege as to Exhibit 28 and 31. In its Order dated September 30, 2016, the Court provided an extensive analysis regarding choice of law as applied in the context of the attorney-client privilege. ECF No. 503 at 7-20. Under this analysis, the law of the state with the most significant relationship with the communication applies. To determine the state with the most significant relationship to the communication, the court will usually look to the state "where the communication took place" pursuant to the Second Restatement § 139. Id. at 15. Under § 139, this means "the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing." Ultimately, this Court determined that "the location test is far too equivocal to be of any use[]" in situations where, like here, the parties to an email communication reside and are located in different states at the time they are making or receiving the email communication. Id. at 16. Therefore, in lieu of the location test, the Court adopted the Second Restatement's alternative approach, which looks to the state where the relationship between the parties was centered. Id.
Ultimately, this Court determined that South Carolina privilege law should apply to communications between the parties (and non-parties) and their attorneys if those relationships and communications "arose out of this litigation." Id. at 17. Specifically, the Court determined that Cynthia Plum's communications with her attorneys should be judged by South Carolina privilege law, as "Plum cannot deny that she entered into a relationship with South Carolina based attorneys to represent her interests in connection with South Carolina litigation regarding the estate plan of her South Carolina resident grandfather." Id.
At the time of the communications at issue in this motion, Wendy was located in South Carolina but, according to Wendy's counsel, was a resident of Florida. Keith's location or residency in July 2011 is not set forth in the parties' filings relevant to this motion, but both locations were presumably the same as his wife's—South Carolina and Florida. Although Heather's residency at the time is unknown, it appears she was located in South Carolina during the relevant time period according to the Wellin Children's Motion. However, like her mother, Heather had retained Candler, an attorney licensed, practicing, and located in Florida, to serve as her estate planning attorney. Accordingly, either South Carolina or Florida privilege law would apply to Exhibit 28 and Exhibit 31 because the relationships between Candler, Wendy, Keith, and Heather were all centered in one of those states.
Notably, both parties assert there is no substantive difference between the privilege law of South Carolina law and Florida law that would affect the disposition of this Motion. In South Carolina, "[t]he attorney-client privilege protects against disclosure of confidential communications by a client to his attorney." Tobaccoville USA, Inc. v. McMaster, 387 S.C. 287, 293, 692 S.E.2d 526, 529 (2010) (citing State v. Owens, 309 S.C. 402, 407, 424 S.E.2d 473, 476 (1992)). The privilege consists of the following essential elements: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except where the protection is waived. Id. at 293, 692 S.E.2d at 530. "[T]he burden of establishing the [attorney-client] privilege rests upon the party asserting it." Wilson v. Preston, 378 S.C. 348, 662 S.E.2d 580, 585 (2008). "Any voluntary disclosure by a client to a third party waives the attorney-client privilege not only as to the specific communication disclosed but also to all communications between the same attorney and the same client on the same subject. Marshall v. Marshall, 282 S.C. 534, 538, 320 S.E.2d 44, 46-47 (Ct. App. 1984).
In Florida, the attorney client privilege is codified at Florida Statutes Section 90.502. In that section, it states that a communication between a lawyer and client is "confidential" if it is "not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication." Fla. Stat. § 90.502 (1)(c). Like in South Carolina, "[t]he burden of establishing the attorney-client privilege rests on the party claiming it." S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383, 19 Fla. L. Weekly S 119 (Fla. 1994). In Florida, voluntary disclosure of privileged material to a third party is inconsistent with the confidential attorney-client relationship and thus, generally waives attorney-client privilege. Visual Scene, Inc. v. Pilkington Bros., plc., 508 So. 2d 437, 440 (Fla. Dist. Ct. App. 1987).
Despite whatever differences and similarities exist between Florida and South Carolina privilege law, the undersigned agrees with counsel for Wendy that the relationship center test can effectively be applied as to the communications set forth in Exhibit 28 and 31, and that the privilege law of Florida should be applied as to each.
As to Exhibit 28, the undersigned finds that the relationship between Wendy, Keith, and Candler was centered in Florida for purposes of applying that State's attorney-client privilege law. As previously set forth by Wendy's counsel, Candler was a Florida-based attorney and Wendy was a resident of Florida at the time of the communication at issue. Although Keith's residency at the time of Exhibit 28 is not set forth in the relevant filings, there is no indication or argument from either party that Keith was not aware of Candler's Florida-based practice. Moreover, it is likely that Keith was also at least a part-time resident of the state of Florida during the relevant time period. And finally, the communication set forth in Exhibit 28 was exchanged prior to the South Carolina-based litigation that is the basis of this lawsuit. Accordingly, the undersigned recommends that Florida privilege law should apply to Exhibit 28.
As to Exhibit 31, the undersigned concludes that Wendy and Heather's relationship with Candler was centered in Florida such that Florida privilege law applies. As previously set forth, at the time of the communications set forth in Exhibit 31, Wendy was a resident of the state of Florida and Candler was a Florida-based attorney. A long-term attorney-client relationship existed between them. Furthermore, while the residency of Ms. Lane in 2011 is unknown, she was also a client of Candler's Florida-based practice. For these reasons, the undersigned finds that Florida privilege law should also be applied in determining whether Exhibit 31 was properly clawed back.
II. Florida Privilege Law
As set forth, in Florida, the attorney client privilege is codified at Florida Statutes Section 90.502. In that section, it states that a communication between a lawyer and client is "confidential" if it is "not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication." Fla. Stat. § 90.502 (1)(c). "The burden of establishing the attorney-client privilege rests on the party claiming it." S. Bell Tel. & Tel. Co., 632 So. 2d at 1383. Voluntary disclosure of privileged material to a third party is inconsistent with the confidential attorney-client relationship and thus, generally waives attorney-client privilege. Visual Scene, Inc., 508 So. 2d at 440; see also State v. Topps, 142 So. 3d 978, 981 (Fla. Dist. Ct. App. 2014)("Generally, communications made in the presence of third parties, whose presence is known to the defendant, are not privileged from disclosure.").
"The privilege [also applies] where a confidential communication is made to an attorney with a view toward his employment, regardless of whether the attorney is subsequently retained [] and it endures even after the attorney-client relationship terminates." Hoyas v. State, 456 So. 2d 1225, 1228 (Fla. Dist. Ct. App. 1984)(citing Keir v. State, 152 Fla. 389, 11 So.2d 886 (1943) and 3 Wharton's Criminal Evidence § 557 (C. Torcia, 13th ed. 1973)). However, the privilege "protects the confidentiality of communications within the attorney-client relationship, not the external trappings of the relationship, such as facts relating to the creation or existence of the attorney-client relationship." Thompson v. Cincinnati Ins. Co., No. 3:10CV318 RS EMT, 2010 WL 4667100, at *3 (N.D. Fla. Nov. 9, 2010)(citations omitted). That is, "[i]t is the substance of the communications which is protected, however, not the fact that there have been communications." Id. (quoting Colton v. United States, 306 F.2d 633, 637-38 (2d Cir.1962) (information about fees received, as well as existence and time frame within which attorney-client relationship existed, not privileged)).
"The policy behind the privilege is to promote freedom of consultation with legal advisors without fear of compelled disclosure, however, it has been said that the privilege, being an 'exception to the general duty to disclose' and an 'obstacle to the investigation of the truth,' 'ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.'" Hoyas, 456 So. 2d at 1228 (quoting Anderson v. State, 297 So.2d 871, 872 (Fla. 2d DCA 1974), quoting from 8 Wigmore, Evidence, § 2291).
The testamentary exception in Florida is also codified at Fla. Stat. § 90.502. Relevant here, the statute provides:
(4) There is no lawyer-client privilege under this section when:Fla. Stat. Ann. § 90.502(4)(b).
. . .
(b) A communication is relevant to an issue between parties who claim through the same deceased client.
III. Joint Client and Common Interest Doctrines under Florida Law
The respective joint client and common interest doctrines under Florida state law were succinctly set forth in a lengthy decision by the United States District Court for the Southern District of Florida:
Two doctrines protect from disclosure those items as to which a court might otherwise conclude that the privilege had been waived by a failure to maintain confidentiality: the "joint client" and the "common legal interest" doctrines. These two doctrines are distinct and do not overlap.MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 594 (S.D. Fla. 2013)(several footnotes omitted, including one citing to previous decisions by Florida courts applying the separate doctrines in an overlapping and inconsistent manner).
The joint client doctrine simply recognizes that the attorney client privilege can apply to joint clients of the same attorney, in the same litigation. The doctrine provides that disclosure by a client or her attorney, which otherwise might constitute a waiver of the attorney-client privilege, is not considered a waiver if the disclosure is made to a co-client of that attorney.
. . .
In comparison, the common legal interest doctrine considers parties with separate counsel to nevertheless be aligned for the purposes of a privilege analysis when those parties have legal interests which are allied, as long as the parties' communications were with a lawyer "consulted in common." Fla. Stat. § 90.502(4)(e). The common legal interest doctrine, which was codified in the Florida Statutes in 1992, recognizes that there are certain limited circumstances in which the parties' sharing of otherwise privileged communications advances the policy behind the privilege.
ANALYSIS
I. Application of Law as to Exhibit 28
An in camera review of Exhibit 28, when combined with the above descriptions and filings of counsel, supports the position that the communication represents an attempt by Wendy on behalf of Keith to determine whether Candler could complete estate planning work for Keith in the absence of Farace. However, the communication set forth in Exhibit 28 does not explicitly state what estate planning work is to be performed. Only through the above-referenced letter and the filings of counsel relevant to this motion does it become apparent that the work to be performed was the same work ultimately completed for Keith by Farace, rather than Candler, in August 2011. Interestingly, a review of Exhibit 28 also indicates that the estate planning work completed in August 2011 may have been initially recommended to Keith (through Wendy) by Candler (rather than Farace) if, in fact, it is the same work referred to in the email. Moreover, certain contents in the email suggest that Keith was aware that this work was initially recommended by Candler (and not Farace). Nevertheless, whether or not Keith was aware that Wendy specifically asked Candler to complete the work, instead of Farace, remains unclear based on my review of Exhibit 28 and the submissions of counsel.
On its face and when combined with Wendy's counsel's argument that Wendy was acting as Keith's "secretary" in drafting the communication set forth in the email, Exhibit 28 represents a communication from a potential client (Keith) to his prospective attorney (Candler) made through the potential client's agent (Wendy). Under Florida law, the attorney client privilege applies "where a confidential communication is made to an attorney with a view toward his employment, regardless of whether the attorney is subsequently retained[.]" Hoyas, supra, 456 So. 2d at 1228. Furthermore, "[w]here a communication meets all the legal requirements entitling it to be privileged from production or disclosure, if made directly between an attorney and his client, it is virtually a universal rule that the privilege is not destroyed by the fact that the communication was made by an agent or employee of the client, rather than by the client himself." 139 A.L.R. 1250. Therefore, Exhibit 28 would be protected from disclosure by the Florida attorney-client privilege, despite the fact that, according to Wendy's counsel, no attorney-client relationship "was created or acted upon" between Keith and Candler.,
However, as noted by the Wellin Children's counsel, Wendy's counsel has not argued or established that Keith was considering entering into an attorney-client relationship with Candler, or even that Keith was aware Wendy was communicating with Candler on his behalf. Instead, Wendy's counsel's basic argument relevant to the present issue is that Wendy's personal attorney-client relationship with Candler is implicated by the communication, despite the fact she admittedly was communicating as Keith's agent in the email and not on her own accord. A recommendation that Exhibit 28 is protected from disclosure as a communication between a potential client and prospective attorney would be undermined by Wendy's counsel's arguments (and lack thereof) in this regard. However, as further outlined in this section, the undersigned concludes that Exhibit 28 was improperly clawed back for other reasons.
Of course, under this analysis, the substance of the communication itself would be confidential, and not the fact that the communication had taken place nor the general subject matter of the communication. Thompson v. Cincinnati Ins. Co, supra.
Nevertheless, based on by review of Exhibit 28 and the submissions of counsel, I conclude that any privilege that did attach to the email was waived under these specific circumstances. Specifically, as noted by counsel for the Wellin Children, this Court has already ruled that Keith waived any privilege over his communications with Farace (and Nixon Peabody) regarding his estate planning matters prior to 2013 because Keith shared, and authorized his counsel to share, all such communications with his children. See ECF No. 336 at 5-10; see also ECF No. 366 (Order adopting Report and Recommendation). Moreover, "[t]o the extent such communications were undertaken by Ms. Wellin on behalf of Keith and regarding his estate planning, they should be disclosed." ECF No. 336 at 9.
As previously set forth, my review of Exhibit 28, when combined with the above-referenced letter and descriptions of counsel, supports a finding that the estate planning work described in Exhibit 28 was the exact same work initially referred to Farace by Wendy and ultimately completed for Keith by Farace, rather than Candler, in August 2011. The undersigned agrees with counsel for the Wellin Children that there is no basis to conclude that Keith's willingness to share all matters relating to his estate planning extended to communications with Farace, but did not extent to communications with Candler regarding exactly the same subject matter that were made by Wendy on Keith's behalf merely because Farace was out of his office at the time.
Wendy's counsel's argument that a recommendation of waiver in this instance would exist as a "blanket waiver" of the attorney-client privilege is persuasive but not compelling. While they are correct in asserting that the previous findings of waiver by this Court and the undersigned were premised on Keith's communications regarding his estate planning with Farace and Nixon Peabody, they cannot deny that the estate planning work that is the subject matter of Exhibit 28 appears to be exactly the same as what was initially referred to Farace and ultimately completed by Farace, instead of Candler. If it were confirmed or even argued that the work referred to in the email was separate and distinct from the work initially referred to and completed by Farace, the analysis may take on a different form. However, under these limited circumstances, it would be inappropriate to draw a distinction between Wendy's communication with Farace on Keith's behalf and her communications with Candler on Keith's behalf.
The undersigned also agrees with counsel for the Wellin Children that the record demonstrates that, prior to 2013 and for the reasons stated herein, Keith had no intention of confidentiality with respect to communications relating to his estate planning vis-a-vis his children. Specifically, as noted previously, this Court has ruled that Keith waived any privilege over his communications with Farace (and Nixon Peabody) regarding his estate planning matters prior to 2013 because Keith shared, and authorized his counsel to share, all such communications with his children. The undersigned concludes that, under these circumstances, it is also appropriate to conclude that Keith had no intention of confidentiality in matters related to his estate planning during the relevant time period. Because Florida (and South Carolina, to the extent it may be applicable) privilege law requires the communication at issue to actually be "confidential" in order to trigger protection by the attorney-client privilege, the undersigned concludes that Exhibit 28 should be disclosed because its subject matter is estate planning work that apparently was never intended by Keith to be kept confidential from his children during the relevant time period.
For these reasons, it is recommended for this Court to find that Exhibit 28 was improperly clawed back under the Confidentiality Order. The undersigned further concludes that the above analysis is dispositive of the issues as they pertain to the proposed confidentiality of Exhibit 28, and therefore does not address the applicability of the testamentary exception to the email. See Futch v. McAllister Towing of Georgetown. Inc., 335 S.C. 598, 518 S.E.2d 591 (1999).
II. Application of Law as to Exhibit 31
Based on my in camera review of Exhibit 31, it appears the email is a communication from Wendy to Candler and Heather wherein Wendy initially seeks legal guidance from Candler and provides commentary as to how certain assets in Keith's estate would be distributed pursuant to Keith's estate planning documents, which were emailed to Wendy by Farace the previous day. Thereafter, the email contains Wendy's directions and commentary to Candler in regards to the treatment and disposition of Keith and Wendy's Florida home under Keith's estate planning documents. It appears this commentary regarding the Florida home is provided by Wendy to Candler in light of Heather's potential interest in receiving the home as a future beneficiary of Wendy's estate, and it would be reasonable to presume that the commentary would invite a response on Heather's part, as suggested by Wendy's counsel. The email also includes a final question by Wendy to Candler which relates to her specific role in Keith's estate plans, before concluding with a request for an expedient response from Candler due the Farace's impending arrival at Wendy's home to review and discuss these matters.
a. Agency Exception / Kovel Doctrine
Under Florida law, a communication remains confidential if it is "not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal service to the client. 2. Those reasonably necessary for the transmission of the communication." Fla. Stat. § 90.502(1)(c). As previously noted, Wendy's counsel argues that Heather's inclusion to Exhibit 31 is in furtherance of the rendition of legal services to Wendy as Wendy is seeking a dialogue with her attorney and her daughter in order to make an informed legal decision regarding the Florida home. In support of this contention, Wendy's counsel thereafter cites to a variety of case law from various jurisdictions, including Florida, for the proposition that third-party disclosure of communications that otherwise would be subject to the attorney-client privilege does not necessarily destroy privilege under certain "agency" situations. See n. 4, supra.
In Witte, for example, a woman relied on the presence and assistance of her daughter and son-in-law during communications with her attorney due to certain linguistic and physical deficits. 126 So. 3d at 1077. Without the daughter and son-in-law's assistance in that case, it was unlikely the attorney would have been able to effectively represent his client. Id. Similarly, in Kovel, a case frequently cited across multiple jurisdictions, the court determined that an accountant's presence while the client relayed a complicated tax story to the lawyer did not destroy the privilege because the accountant's presence was useful "for the effective consultation between the client and the lawyer." 296 F.2d 918, 921. Again, it appears that the accountant's presence in Kovel was imperative for the effective representation of counsel.
In the case at hand, Wendy's counsel are correct in asserting that Heather's inclusion to Exhibit 31 as it relates to the commentary regarding the Florida home could tend to assist Candler in providing legal advice. Specifically, Heather's response to that commentary could guide Candler in offering legal advice to Wendy in regards to her estate plan's treatment of the Florida home. Moreover, as a beneficiary under Wendy's estate plan and a client of Candler, Heather's inclusion to and response to the commentary could also assist Candler in advising Heather as to her own estate.
Nevertheless, the apparent purpose for Heather's inclusion to Exhibit 31 is "far from serving the kind of "translator" function served by the accountant in Kovel [or the children in Witte]." Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 54 (S.D.N.Y. 2000). Instead, it appears that the presence of Heather to Exhibit 31 "simply serves to assist counsel in assessing" various strategic legal alternatives to the execution of Wendy's estate plan, while the presence of the accountant in Kovel and the children in Witte "enable[ed] counsel to understand aspects of the client's own communications that could not otherwise be appreciated in the rendering of legal advice." Id. at 55. Although Heather's inclusion to Exhibit 31 may be helpful in assisting Candler's representation of Wendy as it relates to the Florida home, a communication "between an attorney and a third party does not become shielded by the attorney- client privilege solely because the communication proves important to the attorney's ability to represent the client." United States v. Ackert, 169 F.3d 136, 139 (2d Cir.1999).
Interestingly, Calvin Klein is also a case cited by Wendy's counsel in support of their position that Exhibit 31 is protected from disclosure by the agency or Kovel doctrine. In Calvin Klein, however, the court determined that a public relations firm's inclusion to an otherwise privileged communication destroyed the privilege despite the fact that the firm's inclusion to the communication "may help the [law firm] to formulate legal advice[.]" 198 F.R.D. at 54.
See also Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684, 697 (S.D. Fla. 2009)(citing approvingly to Ackert, 169 F.3d at 140, for the proposition that the attorney-client privilege is destroyed where a third party investment banker's role "was not as a translator or interpreter of client communications."); accord NXIVM Corp. v. O'Hara, 241 F.R.D. 109 (S.D.N.Y.2007) ("the extension of the privilege to non-lawyer's communication is to be narrowly construed. [The] purpose of the third party's participation [must be] to improve the comprehension of the communication between attorney and client[.]")(emphasis added).
Moreover, Wendy's counsel have failed to argue or address how Heather's inclusion to Exhibit 31 as it relates to the other topics set forth within the email (those not relating to the Florida home) was beneficial or even necessary to Candler's ability to provide effective representation. Accordingly, Wendy has failed to sustain her burden to show that Exhibit 31 was properly clawed back and is protected from discovery under the agency or Kovel doctrines as outlined above.
b. Common Interest and Joint Client Doctrines
As previously noted, under Florida law, the common interest and joint client doctrines "are distinct and do not overlap." Maplewood, supra, 295 F.R.D. at 594. "The joint client doctrine simply recognizes that the attorney client privilege can apply to [communications between] joint clients of the same attorney, in the same litigation." Id. "In comparison, the common legal interest doctrine considers parties with separate counsel to nevertheless be aligned for the purposes of a privilege analysis when those parties have legal interests which are allied[.]" Id.
As an initial matter, the Wellin Children's counsel are correct in asserting that the standard application of the common interest doctrine in Florida is inapplicable to Exhibit 31 because only a single attorney is involved. Although Wendy's counsel argue that Florida case law does not expressly require the existence of multiple attorneys, their contention in that regard is not supported by the clear language of recent Florida holdings which define the common interest doctrine.
See In re Indiantown Realty Partners, Ltd. P'ship, 270 B.R. 532, 539 (Bankr. S.D. Fla. 2001)("Axiomatic to the [common interest] doctrine is the existence of multiple parties. A fortiori, for this doctrine to apply there must also be multiple attorneys."); JTR Enterprises, LLC v. An Unknown Quantity of Colombian Emeralds, Amethysts & Quartz Crystals, 297 F.R.D. 522, 528 (S.D. Fla. 2013)("[T]he common-interest privilege applies when clients with separate attorneys share otherwise privileged information in order to coordinate their legal activities.") (quoting In re Ginn-LA St. Lucie Ltd., LLLP, 439 B.R. 801, 805 n. 4 (Bankr.S.D.Fla.2010)); In re Fisher Island Investments, Inc., 2015 WL 148449 at *2 (Bkrtcy.S.D.Fla.)("As the Court has explained in the past, the common interest privilege applies when clients with separate attorneys share otherwise privileged information in order to coordinate their legal activities.") (emphasis added in each).
Moreover, a review of the relevant case law makes clear that both the common interest and joint client doctrines in Florida are typically applied only in the context of existing or anticipated litigation, where multiple attorneys (in the context of the common interest doctrine) or a single attorney (in the case of the joint client doctrine) communicates with co-defendants or co-plaintiffs to develop a common defense or prosecution strategy. In fact, the undersigned has not found any applicable Florida law where either doctrine is applied outside the context of pending or anticipated litigation. For that reason, it appears that any application of the common interest or joint client doctrines outside the context of anticipated or pending litigation would exist as an expansion of the Florida attorney-client privilege law as it relates to these doctrines. As noted by the Wellin Children's counsel, Exhibit 31 is an email that was sent at a time when Wendy does not claim that she or Heather were involved in litigation or were anticipating litigation. Accordingly, the standard application of the joint client doctrine in Florida is not applicable to Exhibit 31 as it relates to the commentary regarding the Florida home.
See Mitsui Sumitomo Ins. Co. v. Carbel, LLC, No. 09-21208-CIV, 2011 WL 2682958, at *4 (S.D. Fla. July 11, 2011) ("Under the "common interest" exception to waiver, a party may share its work product with another party without waiving the right to assert the privilege when the parties have a shared interest in actual or potential litigation against a common adversary, and the nature of their common interest is legal, and not solely commercial."); Maplewood, 295 F.R.D. 550, 594 ("The joint client doctrine simply recognizes that the attorney client privilege can apply to joint clients of the same attorney, in the same litigation.") (emphasis added).
There is very limited case law interpreting the joint client doctrine in Florida. In fact, based on my review, there are only two related District Court cases in Florida other than Maplewood which apply the doctrine and both cite to Maplewood for use in interpreting the doctrine. Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., Inc., No. 12-CV-81397-KAM, 2015 WL 11921411, at *3 (S.D. Fla. July 6, 2015); Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., No. 12-81397-CIV, 2015 WL 1860826, at *5 (S.D. Fla. Apr. 22, 2015).
As further noted by the Wellin Children's counsel, however, some courts outside of Florida have applied the joint client doctrine in non-litigation contexts where two or more clients retain a single attorney to assist them on a single matter in which they share a common legal interest. For instance, this Court discussed the application of the joint client doctrine outside the litigation context in the frequently-cited case of Duplan Corp. v. Deering Milliken, Inc., supra, 397 F.Supp. 1146. At least two courts in Florida have cited Duplan as persuasive authority, albeit in the context of the common interest doctrine and not the joint client doctrine. Nevertheless, given its citation by courts in Florida as well as the similarities that exist between the joint client and common interest doctrines as previously noted by this Court, See ECF No. 503 at 33-34, the undersigned sees no reason why Florida courts would not address the application of the joint client doctrine to relevant communications outside the context of pending or anticipated litigation if presented the opportunity.
As previously noted by this court, the joint client and common interest doctrines are often confused or conflated by courts across the country. See ECF No. 503 at 33-34. What is clear is that the purposes for the two doctrines are "functionally similar" and each applies "to communications made in furtherance of the clients' common interest." Id. at 34. In Duplan, this court did not use the term "joint client doctrine" but nevertheless referred to a situation in which a single attorney represented multiple parties to the communication at issue. 397 F. Supp. at 1174.
Breslow v. Am. Sec. Ins. Co., No. 14-62834-CIV, 2016 WL 698124, at *9 (S.D. Fla. Feb. 19, 2016); Mitsui Sumitomo Ins. Co. v. Carbel, LLC, supra, 2011 WL 2682958, at *4. --------
In Duplan, this Court explained that the common interest or joint client doctrine may apply outside the litigation context where a communication is shared with multiple clients because one client owes a duty to the other client that necessitates the sharing of information, or where joint clients of a single attorney are entering into a direct transaction with one another and therefore need to share information. 397 F. Supp. at 1175. This Court explained why applying the joint client doctrine outside these contexts is not consistent with the policy behind the attorney-client privilege:
Where the communication to a third party (non-party client), of an attorney-client exchange is not based on such a duty or direct transaction between the joint clients of an attorney (that is, a legal interest), but is based rather on the non-party client's interest in a matter involving the prime client and some outsider, the reason for the exception to the normal rule of waiver ceases to exist, and with it, the exception. This is so even though the communication is with the full knowledge and consent of the prime client, and even though the non-party client, of the same attorney is actively assisting the prime client in his adversary action. The underlying reason here is as basic as the purpose of the attorney-client privilege itself, which, as stated by Wigmore, is that:
The privilege is designed to secure objective freedom of mind for the client in seeking legal advice (ante, sec. 2291). It has not concern with other persons' freedom of mind, nor with the attorney's own desire for secrecy in his conduct of a client's case. It is therefore not sufficient for the attorney, in invoking the privilege, to state that the information came somehow to him while acting for the client, nor that it came from some particular third person for the benefit of the client. (Emphasis in original.)
Thus, where there is no legal interest (duty or direct transaction between the two clients of the attorney), the mere interest of a non-party client in legal transactions between the prime client and an outsider is not sufficient to prevent a waiver of the attorney-client privilege. This is true no matter how commercially strong the non-party client's interest is, or how severely the non-party client may be legally [a]ffected by the outcome of the transaction between the prime client and an outsider.Id.
On its face and when combined with the representations of Wendy's counsel, Exhibit 31 was not communicated at a time when Wendy claims that she and Heather jointly retained Candler, or that Candler was assisting Wendy and Heather on a single matter after being retained separately. See Letter dated November 17, 2017 (attached as "Exhibit B" to Wellin Children's Motion) (stating that "we can agree that the representation of Mrs. Wellin and Heather Lane was not joint as to Mrs. Wellin's estate planning."); see also Candler Dep. At 24:6-13, 49:20-24 (Candler testifying that Wendy and Heather separately retained him to assist them with their respective estate planning). Nor does Wendy claim that she shared information with Heather because Heather owed Wendy a duty that necessitated her being made aware of the information set forth within Exhibit 31, or that she and Heather were entering into a direct transaction with one another. Rather, Wendy argues as follows:
Specially, Mrs. Wellin and Heather Lane's interests are identical in this correspondence because Mrs. Wellin included Heather to find out whether Heather was interested in planning around an asset of Mrs. Wellin's, specifically the house in Florida. Mrs. Wellin wanted to know whether Heather wanted the home as part of Mrs. Wellin's estate should something happen to Mrs. Wellin.See Letter dated November 17, 2017 (attached as "Exhibit B" to Wellin Children's Motion).
Moreover, as noted by the Wellin Children's counsel, courts have held that the joint client doctrine requires a higher degree of commonality of interest between joint clients than is required under the common interest doctrine when separate clients have separate attorneys. See, e.g., In re Teleglobe Commc'ns Corp., 493 F.3d 345, 366 (3d. Cir. 2007 ("In particular, because co-clients agree to share all information related to the matter of common interest with each other and to employ the same attorney, their legal interest must be identical (or nearly so) in order that an attorney can represent them with the candor, vigor, and loyalty our ethics require. In the community-of-interest context, on the other hand, because clients have separate attorneys, courts can afford to relax the degree to which clients' interests must converge without worrying that their attorneys' ability to represent them zealously and single-mindedly will suffer.") (internal citation omitted).
Pursuant to the above, it cannot be said that two individuals share a common legal interest for purposes of the non-litigation variety of the joint client doctrine merely because one of the individuals is curious as to whether the other individual would like to plan around a particular asset from the first individual's estate. Moreover, Heather's ability to "plan around" the Florida home would be in Heather's interest, not Wendy and Heather's interest. As such, the undersigned agrees with counsel for the Wellin Children that Wendy's interest in including Heather to Exhibit 31 as it relates to the commentary regarding the Florida home is an insufficient joint legal interest for purposes of implicating and applying the joint client doctrine.
Additionally, as previously set forth in regards to the application of the agency or Kovel doctrine, my review of Exhibit 31 makes clear that only a limited portion of the email relates to the estate plan's disposition of the Florida home. As to those remaining sections of the email, Wendy's counsel has failed to argue or even address how Heather's inclusion as to those communications is in line with the policy underlying the common interest or joint client doctrines. As such, even if the undersigned were to recommend that the commentary regarding the Florida home set forth within Exhibit 31 was protected by one of the doctrines outlined above, it would be improper to find that Wendy has sustained her burden of showing a privilege as to these remaining sections.
Accordingly, for the reasons outlined above, the undersigned recommends that Wendy has failed to sustain her burden of showing that Exhibit 31 was properly clawed back pursuant to the Confidently Order under either the common interest or joint client doctrines.
CONCLUSION
For the above reasons, it is recommended that Wendy Wellin be required to produce Exhibits 28 and 31 in their entirety, both of which were improperly clawed back under the Confidentiality Order.
Respectfully submitted this 24th day of October, 2018.
/s/ _________
William L. Howard, Special Referee