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Florida Fourth DCA rules that attorney was entitled to evidentiary hearing before trial court could compel his testimony under crime-fraud exception to attorney-client privilege

On May 24, 2017, in Douberley v. Perlmutter, No. 4D16-2597, the Florida Fourth DCA granted an attorney’s petition for a writ of certiorari to review an order compelling him to answer questions involving attorney-client privilege. The attorney had allegedly scheduled a deposition to surreptitiously collect DNA by having the deponent, a prospective defendant, handle chemically treated documents which were submitted for his review. According to the Fourth DCA, the record suggested that neither the attorney, his DNA tester nor the police appear to have been aware that it is a misdemeanor criminal offense in Florida for a private party to perform a DNA analysis on another person’s DNA samples with prior consent. When the opposing party deposed the attorney regarding the pretextual deposition, the attorney claimed attorney-client privilege. The trial court subsequently concluded that the attorney-client privilege was vitiated by the crime-fraud exception and ordered the defendant to testify. However, this conclusion was reached at hearing which was conducted without notice to or the presence of the attorney. The Fourth DCA noted that Florida courts have held that due process requires an evidentiary hearing to determine applicability of the crime-fraud exception, see Merco Group of the Palm Beaches, Inc. v. McGregor, 162 So. 3d 49, 51 (Fla. 4th DCA 2014), and that the attorney was denied due process when the court found that his conduct was fraudulent without offering him an opportunity to be heard. See Carmona v. Wal-Mart Stores, East, LP, 81 So. 3d 461 (Fla. 2d DCA 2011); Clare v. Coleman (Parent) Holdings, Inc., 928 So. 2d 1246, 1248 (Fla. 4th DCA 2006). The case was remanded so the hearing could be conducted.

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