The Law Offices of Herssein and Herssein (“Herssein”) had a contract to defend homeowners insured by liability insurer United States Automobile Association (“USAA”). USAA insured Brennan had a dispute with “Claimant,” who allegedly was injured by Brennan’s dogs. USAA accepted a pre-suit demand for policy limits and tendered a check, but Claimant declined to cash the check and instead filed suit against Brennan and others (“Claimant’s Case”). Herssein was assigned to defend Brennan.
Instead of seeking to enforce the prior settlement agreement, Herssein withdrew the policy limit tender. During the litigation, Herssein advised Brennan to reject a policy-limit proposal for settlement. Herssein served a counter-proposal, which was rejected. At trial partial summary judgment was rendered for Claimant. Brennan then hired her own counsel (Maher) who indicated that Brennan may pursue a bad faith action against USAA and a legal malpractice action against Herssein. Recognizing the conflict, Herssein withdrew.
USAA appointed Wadsworth as successor counsel to represent Brennan. Claimant’s Case was settled at mediation, where USAA was represented by 2 lawyers. Not long after that, USAA terminated its contract with Herssein. Herssein sued for breach of contract, and USAA counterclaimed alleging that it suffered damages due to Herssein’s negligent handling of Claimant’s Case.
Herssein sent interrogatories to USAA, including this one: “Whose advice did USAA take to settle [Claimaint’s Case] and pay over the insured’s policy limits, if that is what occurred?” USAA raised an attorney-client privilege objection to this interrogatory. Herssein also served Wadsworth with a non-party subpoena seeking documents that included communications between Wadsworth and “any person or party” involved in Claimant’s Case. Wadsworth objected, also on attorney-client privilege grounds. The trial court ordered USAA to answer and Wadsworth to produce. Both filed a petition for certiorari review. The Third DCA quashed the orders.
The appeals court concluded that the interrogatory to USAA sought privileged communications, because it sought “the identity of the lawyer who advised USAA to settle the case at the mediation. There is no practical difference, then, between this interrogatory question and asking USAA to divulge the content of the legal advice each attorney attending the mediation provided to USAA. Plainly, then, the subject interrogatory seeks confidential communications between USAA and its lawyers and is protected by the attorney-client privilege.” (Emphasis by court.)
The documents sought from Wadsworth also were privileged. Even though Brennan had his own counsel during the mediation, “it is well settled that communications between an insurer and the lawyer hired by the insurer to protect the insured’s interests are protected by the attorney-client privilege because the insurer and insured share a common interest in the outcome of the case.”
Herssein, however, argued that the “malpractice exception” to the attorney-client privilege applied. See F.S. 90.502(4)(c) (“[t]here is no lawyer-client privilege . . . when . . . [a] communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.”). The Third DCA disagreed. Citing Coyne v. Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., 715 So.2d 1021 (Fla. 4th DCA 1998), the court held the malpractice exception to the privilege “applies only to communications between the client and the lawyer being sued.” Neither the USAA lawyers nor Wadsworth met that requirement, and so the orders requiring disclosure were quashed. United States Auto. Ass’n v. Law Offices of Herssein and Herssein, P.A., __ So.3d __ (Fla. 3d DCA, Nos. 3D17-1457, 3D17-1500, 3D17-1527, 12/13/2017), 2017 WL