Retainer Agreement Condominium

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					                             STATE OF FLORIDA
           DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
     DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES

IN RE: PETITION FOR ARBITRATION

DIANA HEATON,

       Petitioner,

v.                                                        Case No. 02-4872

OCEAN VIEW TOWERS CONDOMINIUM
ASSOCIATION, INC.,

       Respondent.
                                  /

                             SUMMARY FINAL ORDER

       Comes now, the undersigned arbitrator, and enters this order as follows:

       On May 2, 2002, the Petitioner filed a petition for arbitration.      In the

petition, petitioner alleges that she requested to view and copy records of the

association including the retainer agreement between the association and its

attorney, pursuant to section 718.111(12), Florida Statutes. The petition alleges

that the respondent has denied the petitioner access to the retainer agreement and

its attachments. The petitioner requests an order permitting access to the records

as well as statutory damages of $500.00 for the denial of access to the books and

records.

       The association filed its answer on June 8, 2002. The association admits

receiving the request for inspection, alleges that all non-privileged documents have

been provided, alleges that a redacted copy of the retainer agreement and its
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attachment was provided, and asserts that certain portions of the retainer

agreement or the attachment are protected by the attorney-client or work product

privileges.   It is the association's position that damages should not be awarded

because its failure to produce the documents was based upon a good faith belief

that such documents are exempt from disclosure pursuant to section 718.111(12),

Florida Statutes. On June 25, 2002, the respondent filed a copy of the complete

retainer agreement and its attachments for an in-camera inspection by the

arbitrator.

       The retainer agreement can best be described as a standard contract

between an attorney and its client. The retainer agreement contains mostly boiler-

plate language, generally detailing standards of representation as outlined by the

Florida Bar. The exhibits to the retainer agreement, however, are a plan detailing

the suggested legal tactics to be employed by the attorney while collecting

delinquent assessments for the association, which is the function for which the

association hired the attorney in this instance.

       With reference to the retainer agreement, the association provided to the

petitioners a redacted copy of the agreement and its attachments, excluding all

language it deemed to be protected by the attorney-client or work product

privileges on April 12, 2002.    On July 11, 2002, a phone conference was held

with both parties.    The question identified and presented for discussion at the

status conference was whether the retainer agreement and the attachments

requested by the petitioner are protected by work product and/or attorney-client
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privileges.   Additionally, the parties were given until July 30, 2002 to submit

memorandum in support of their positions on this issue.

                               Attorney-Client Privilege

       The attorney-client privilege is designed to encourage clients to disclose fully

to counsel all pertinent facts, whether favorable or unfavorable, so that counsel

can provide competent and effective legal representation.        See Fisher v. United

States, 425 U.S. 391, 403 (1976); In re Murphy, 560 F.2d 326, 337 (8th

Cir.1977); Hoyas v. State, 456 So.2d 1225, 1228 (Fla. 3d DCA 1984). The

privilege is well established in the common law, Hoyas, 456 So.2d at 1228, and

has been codified in section 90.502, Florida Statutes (1985).         Section 90.502

provides, in relevant part:

       (1) For purposes of this section:

          (a)      A "lawyer" is a person authorized, or reasonably believed by
          the client to be authorized, to practice law in any state or nation.
          (b)      A "client" is any person, public officer, corporation,
          association, or other organization or entity, either public or private,
          who consults a lawyer with the purpose of obtaining legal services
          or who is rendered legal services by a lawyer.
          (c)      A communication between 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.

       (2) A client has a privilege to refuse to disclose, and to prevent any
       other person from disclosing, the contents of confidential
       communications when such other person learned of the
       communications because they were made in the rendition of legal
       services to the client.

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Section 718.111(12)(c)(1), Florida Statutes, specifically provides that records of a

condominium association protected by lawyer-client privilege, as defined by Section

90.502, Florida Statutes, are exempt from disclosure to unit owners.

      Basic to the           assertion   of   the     attorney-client    privilege is      that   the

communication in question must have been made in confidence. “In order to be

privileged, a communication must be made in confidence of the relationship and

under circumstances from which it may reasonably be presumed that it will remain

in confidence.” Wilcoxon v. United States, 231 F.2d 384 (10th Cir. 1956). See

also Dominguez v. Citizens' Bank & Trust Company, 56 So. 682 (Fla. 1911).

      Materials protected by the attorney-client privilege are exempt from

disclosure pursuant to section 718.111(12), Florida Statutes, even where the

documents would otherwise constitute official records within the meaning of the

statute. See Philistin v. Shaker Village Condominium Association, Inc., Arb. Case

No. 98-2858, Order Following Status Conference (April 9, 1998), (arbitrator held

that the attorney-client privilege was applicable to shield disclosure of records

otherwise subject to owner access pursuant to Section 718.111(12), Florida

Statutes).

                                 WORK-PRODUCT DOCTRINE

      In     addition   to    the   traditional     attorney-client     privilege   that    protects

confidential communications between the attorney and client, the "work product"

privilege doctrine protects certain documents and papers of an attorney or a party,

prepared in anticipation of litigation regardless of whether they pertain to
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confidential conversations with a client. The Florida Supreme Court in Surf Drugs,

Inc. v. Vermette, 236 So.2d 108, 112 (Fla. 1970), defined work product to include

the:

       personal views of the attorney as to how and when to present
       evidence, his evaluation of its relative importance, his knowledge of
       which witness will give certain testimony, personal notes and records
       as to witnesses, jurors, legal citations, proposed arguments, jury
       instructions, diagrams and charts he may refer to at trial for his
       convenience, but not to be used as evidence...

       Although what constitutes work product is incapable of concise definition

adequate for all occasions, opinions and judgment calls of counsel are considered

work-product of the highest order, and are absolutely or nearly absolutely

protected. See Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970). See

also Charles Ehrhardt, Florida Evidence § 502.9 (1993 Ed.); State v. Rabin, 495

So.2d 257, 262 (Fla. 3d DCA 1986); Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.),

cert. denied, 474 U.S. 903 (1985).

       Work product can be divided into two categories: "fact" work product,

factual information that pertains to the client's case and is prepared or gathered in

connection therewith, and "opinion" work product, the attorney's mental

impressions, conclusions, opinions, or theories concerning his client's case. See

Rabin, 495 So.2d at 262. A clear distinction has been drawn between these two

types of work product with respect to the degree of protection provided. While

"fact" work product is discoverable upon a showing of need and undue hardship,

"opinion" work product, which is work product which reflects the attorney's

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mental impressions, conclusions, opinions or theories concerning the client's case,

are given greater protection. Id. Moreover, the court in Rabin, stated that:

         The protection of an attorney's mental process is essential to the
         proper functioning of the adversary system. The possibility that an
         attorney's work product might be revealed, even in later unrelated
         causes, may deter the attorney from freely recording his mental
         impressions, conclusions, theories, or opinions. See, DuPlan Corp v.
         Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir. 1974).

Additionally, the work product doctrine is broader than the attorney-client privilege.

See Alachua General Hospital v. Zimmer, 403 So.2d 1087, 1088 (Fla. 1st DCA

1981).

                                     ANALYSIS

         In the instant case, except for sections of the agreement on page one and

two of the retainer agreement, the attorney-client privilege would not protect the

remainder of the document. Most of the document neither expresses legal opinions

nor suggests litigation strategy.    In fact, most sections of the agreement are

standard contract language detailing the rights and obligations of the parties to the

contract and expressing the standards of representation outlined by the Rules of

Professional Conduct and the Florida Bar.       The association’s assertion of the

attorney-client privilege over these sections of the retainer agreement is without

merit.     Accordingly, except for Section 2, titled Enforcement of Covenants,

Restriction, Rules and Regulations, the remaining sections of the retainer agreement

cannot be said to contain confidential communications between the attorney and

their client and are not protected from disclosure.

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      With the exception of the “Section 2 Enforcement” provision, the retainer

agreement is not protected by the work-product doctrine either.             The retainer

agreement contains mostly factual information that pertains to the representation

of the association. This factual information, as stated previously, is basic contract

language detailing the rights and obligations of the parties to the contract and

expressing the standards of representation as outlined by the Rules of Professional

Conduct and the Florida Bar.         Accordingly, the association’s position that the

sections of the retainer agreement, other that section 2, is protected by the work

product doctrine is without merit.

      Regarding the attachment to the retainer agreement, this document, unlike

the retainer agreement, appears to fall within the protection of the attorney-client

privilege. The attachment, exhibit “A”, to the retainer agreement is a memorandum

of the “recommended collection procedures” that may be utilized by the attorney.

Given that exhibit “A” is a detailed listing of the attorney’s tactics, opinions and

recommendations for collection of delinquent assessments owed to the association,

it is clear that the association intended that this document remain confidential. For

example, exhibit “A” a series of steps to be taken by the attorney when collecting

delinquent assessments and the actions to follow when each prior collection effort

has failed.   Accordingly, exhibit “A” is protected by the attorney-client privilege as

defined by Section 90.502 Florida Statutes.

      Exhibit    ”A”,   however,     reflects   the   association's   attorney's   mental

impressions, conclusions, opinions and theories concerning certain types of
                                            7
litigation involving the association, and is opinion work product.    Accordingly,

exhibit “A” to the retainer agreement is protected by both the attorney client and

work-product privileges.

      Based upon the foregoing, it is concluded that exhibit “A” to the retainer

agreement is an association record exempt from disclosure pursuant to the

attorney-client and work product privileges. The association’s failure to disclose

this exhibit “A” is not a violation of Section 718.111, Florida Statutes.      The

retainer agreement, with the exception of the “Section 2 Enforcement” provision, is

not protected by either the attorney-client or the work product privilege.     The

association’s assertion of the work product and attorney client privileges over the

remaining sections of the retainer agreement is without merit. Accordingly, the

respondent is hereby ordered to produce the retainer agreement, with the exception

of Section 2, and the request to produce exhibit “A” is DENIED.   The petitioner is

hereby awarded the sum of $500.00 for the violation of Section 718.111, Florida

Statutes, for failing to disclose the non-privileged sections of the retainer

agreement.

      DONE AND ORDERED this 20th day of August 2002, at Tallahassee, Leon

County, Florida.

                                            ______________________________
                                            Richard M. Coln, Arbitrator
                                            Department of Business and
                                               Professional Regulation
                                            Arbitration Section
                                            1940 North Monroe Street
                                            Tallahassee, FL 32399-1029
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                             RIGHT TO TRIAL DE NOVO

     PURSUANT TO SECTION 718.1255, FLORIDA STATUTES, THIS DECISION
SHALL BE BINDING ON THE PARTIES UNLESS A COMPLAINT FOR TRIAL DE
NOVO IS FILED BY AN ADVERSELY AFFECTED PARTY IN A COURT OF
COMPETENT JURISDICTION IN THE CIRCUIT IN WHICH THE CONDOMINIUM IS
LOCATED WITHIN 30 DAYS OF THE DATE OF MAILING OF THIS ORDER. THIS
FINAL ORDER DOES NOT CONSTITUTE FINAL AGENCY ACTION AND IS NOT
APPEALABLE TO THE DISTRICT COURTS OF APPEAL.

                                 ATTORNEY’S FEES

       As provided by s. 718.1255, F.S., the prevailing party in this proceeding is
entitled to have the other party pay its reasonable costs and attorney’s fees. Rule
61B-45.048, F.A.C., requires that a party seeking an award of costs and attorney’s
fees must file a motion seeking the award not later than 45 days after rendition of
this final order. The motion must be actually received by the Division within this
45-day period and must conform to the requirements of rule 61B-45.048, F.A.C.
The filing of an appeal of this order does not toll the time for the filing of a motion
seeking prevailing party costs and attorney’s fees.

                             CERTIFICATE OF MAILING


      I hereby certify that a true and correct copy of the foregoing was mailed by

U.S. mail, postage prepaid, this 20th day of August 2002, to:

F. Blane Carneal, Esq.
P.O. Box 030129
Fort Lauderdale, FL 33303

Mark M. Heinish, Esq.
Katzman & Korr, P.A.
5581 W. Oakland Park Blvd.
2nd Floor
Lauderhill, FL 33313

                                              ______________________________
                                              Richard M. Coln, Arbitrator



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