Attorney-Client Privilege

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The attorney-client privilege is one of the oldest and most respected privileges. It prevents a lawyer from being compelled to testify against their client.

The purpose of this privilege is to ensure clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others. The privilege covers written and oral communications and protects both individual and institutional clients. The privilege extends from the attorneys hired to represent the University to include legal office staff who facilitate communications to and from the attorneys.

The attorney-client privilege does not apply to every communication with an attorney. For the privilege to exist, the communication must be to, from, or with an attorney and intended to be confidential. In addition, the communication must be for the purpose of requesting or receiving legal advice. For example, an email or memorandum from one administrator to another concerning a legal matter typically is not privileged because it is not sent to or from an attorney for the purpose of obtaining legal advice.

Maintaining Confidentiality

Communications must be kept confidential for the privilege to apply. If the substance of attorney-client communications is disclosed to persons outside the University - or even to persons within the University who are not directly involved in the matter - the privilege may be lost. Your communications with attorneys in the Office of the General Counsel or outside counsel representing FGCU should never be discussed with anyone outside FGCU, including family members or friends. Within the University, such communications should be discussed only with persons who have responsibility for the particular matter.

With respect to email communications, use caution before forwarding legal advice to another party because such action may waive the privilege. Generally, conveying legal advice to persons directly involved with a decision on behalf of the University will not void the privilege. Disclosure of significant legal advice to persons without a need to know should be made only after consultation with the Office of the General Counsel.

Since the Office of the General Counsel represents the University as a whole, communications by individual employees to the Office of the General Counsel may be disclosed to other administrators or to outside counsel retained to represent or advise the University on a 'need to know' basis.

If you have questions about the attorney-client privilege in your work with FGCU, please contact the Office of the General Counsel. In requesting or receiving legal advice concerning University business, be assured that the Office of the General Counsel will preserve the privileged nature of all communications.

Florida Sunshine Law Limitations

Written Communications
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As a public entity in Florida, the University's attorney-client privilege for written communications is more limited than that of private organizations or individuals due to Florida's Public Records Law, Chapter 119, Florida Statutes.

Generally, the only written communications between University counsel and clients that are confidential are those falling within the 'attorney work product exemption.' This exemption applies to records prepared by an agency attorney or at the attorney's express direction, in anticipation of imminent civil or administrative litigation, that reflect a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the University. These records lose their confidentiality and become public records at the conclusion of the litigation and any appeals.

Records relating to insurance and tort claims are generally confidential and exempt from disclosure under Florida law.

Because Florida law does not provide a blanket attorney-client privilege for written communications by public entities, University counsel often must confer with clients and render advice orally to avoid sensitive communications becoming subject to public disclosure.
Oral Communications
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Oral communications between the Office of the General Counsel and individual trustees, administrators, staff, or faculty are privileged when made for the purpose of obtaining legal advice and intended to remain confidential.

Due to Florida's Sunshine Law (section 286.011, Florida Statutes), most communications between the Board of Trustees and the General Counsel during a Board meeting are not privileged. However, the Board may meet privately with the General Counsel and the President to discuss litigation strategy and settlement, as well as matters addressing collective bargaining.

Situations Not Covered

The Fact of a Consultation
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The attorney-client privilege does not extend to the fact that a consultation between attorney and client occurred or to the general subject matter of the consultation. It protects only the content of the communications during that consultation. For example, the privilege would not protect the fact that a vice president met with the General Counsel to discuss development of a particular University contract, but the privilege would protect the discussions between them, such as the advice sought or given.
Lawyer in the Room
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The attorney-client privilege does not apply simply because a lawyer is present. Not all conversations at a meeting with legal counsel are protected just because an attorney is in the room. The privilege applies only when the attorney is acting in a legal capacity to provide legal advice. When a lawyer plays a different role (such as investigator, project manager, or administrator), the privilege may not apply.
Underlying Facts Shared with an Attorney
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The attorney-client privilege protects the content of communications between the client and attorney. However, it does not protect underlying factual information that the client shared with the attorney during the communication. The facts themselves remain discoverable even if they were discussed with an attorney.
Documents Given to an Attorney
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Documents do not automatically become privileged simply because they are given to or reviewed by an attorney. Correspondence forwarded to an attorney for a purpose other than obtaining legal advice is not privileged. The attorney-client privilege applies in limited circumstances to written documents of public entities in the State of Florida.
Correspondence with Copies to an Attorney
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General correspondence does not become privileged simply because an attorney is listed among those receiving a copy or blind copy. However, if the correspondence is conveying the content of an attorney's legal advice to others in the organization with a legitimate need to know, and the document falls within the scope of protected written communications, it may be privileged.
Communication in the Presence of a Third Party
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The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings or in the presence of third parties unnecessary to the consultation are not confidential and therefore are not protected by the privilege.