Kranias v. Tsiogas, 941 So.2d 1173 (Fla. 2d DCA Oct 13, 2006)
Attorneys witness their clients’ signatures on documents all the time. In the estate planning context, attorneys regularly witness their clients signatures on wills and trusts. Is the attorney-client privilege waived every time you witness a signature? The 2d DCA says NO.
The specific exception to the attorney-client privilege at issue here is found in Florida Statutes section 90.502(4)(d), which provides as follows:
(4) There is no lawyer-client privilege under this section when: . . . . . (d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.
In the linked-to case the petitioners were suing the trustee of a land trust for somehow defrauding them in connection with a deed. The petitioners’ own attorney had written to them about the deed, and also witnessed their signatures on the deed. The trial court said that was enough to require disclosure of attorney’s letter. Wrong answer.
As explained by the 2d DCA, just because counsel witnesses his clients’ signatures doesn’t mean the attorney-client privilege is lost:
We conclude that the circuit court erred in ordering the production of this letter based on section 90.502(4)(d), because this exception to the attorney-client privilege does not apply here. There has been no argument that the Petitioners either did not intend to sign or were not competent to sign the quitclaim deeds that conveyed property from a land trust to the Petitioners. The attorney-client privilege is not waived as to communications between an attorney and a client when such communications pertain to the preparation of a document merely because the attorney later acts as a witness to the parties’ signatures on that document.
Lesson learned: anticipate privilege waiver issues
A significant cultural difference between planning/transactional attorneys and litigators is their respective sensitivity to circumstances that may result in a waiver of the attorney-client privilege. Sensitivity to this issue is second nature to litigators (it’s part of their every-day practice), non-litigators need to make a conscious effort to keep it in mind. As I’ve written before (see here), sometimes it’s OK to purposely step into the attorney-as-trial-witness role, you just don’t want to end up there inadvertently.