Lawyer held in indirect criminal contempt and jailed for post-trial contact with juror after court denied permission.  [Added 6/3/10]

    Lawyer represented a criminal defendant at trial.  The day after jury selection a juror asked the court to excuse her, asserting that she had a medical condition that prevented her from continuing to serve.  The court excused the juror and replaced her with an alternate.  Lawyer immediately accused the juror "of having been 'tampered with' and made an oral request that the court permit him to obtain her medical records.  The court expressly denied this request calling it 'nothing short of outrageous.'"

    After the trial Lawyer filed a "Motion for New Trial, Notice of Intent to Interview Jurors, and a Request for Extension of Time to File Motion for Permission to Interview Jurors."  Two days later, without court authorization, Lawyer called the juror.  The court heard about the contact and charged Lawyer with indirect criminal contempt.  Lawyer was found guilty and sentenced to 5 months and 29 days in jail.  Lawyer appealed.

    The First DCA affirmed.  Lawyer's contact with the juror was not in compliance with Rule 4-3.5(d)(4) of the Rules of Professional Conduct or Fla.R.Crim.P. 3.575.  Alan v. State, __ So.3d ___, 35 Fla.L.Weekly D1161 (Fla., No.1D08-3012, 5/26/2010), 2010 WL 2077168.

Court erred in enjoining parties, their counsel, and their agents from engaging in out-of-court publicity "consistent with" Rule 4-3.6.  [Added 5/27/10]

    A newspaper published an article by the president of the Florida Justice Reform Institute criticizing the trial court's decision to strike Defendant's pleadings, enter a default judgment against Defendant on liability, and order a trial on only damages.  Plaintiff filed a motion for sanctions and to order Defendant "from Any Further Attempt to Influence Potential Jurors."  Plaintiff argued that Defendant and its lawyers were behind the newspaper article.  Two days later, at a hearing noticed for another purpose, "the trial court, sua sponte, entered a temporary injunction 'directed to all parties and their counsel, and those that are working in concert with their respective agents and employees either directly or indirectly with the parties and/or their counsel, consistent with 4.3-6 of the Rules Regulating the Florida Bar not to participate, encourage, assist, or abet in the dissemination of any out-of-court publicity in this matter'.”  Defendant appealed.

    The Fourth DCA reversed.  There was no showing that the order was "necessary to preclude a substantial likelihood of material prejudice to the trial of the case.  Furthermore, there was no evidence presented and there were no findings made that any out-of-court publicity posed a substantial and imminent threat to the fairness of the trial proceedings."  (The hearing also had not been properly noticed.)  E.I. DuPont de Nemours and Co. v. Aquamar, S.A., 33 So.3d 839 (Fla. 4th DCA 2010).

Court properly permitted treating physician to have ex parte pre-deposition conference with her own lawyer, excluding discussion of plaintiff's care and treatment.  [Added 5/25/10]

    In a medical negligence case, non-party Treating Physician was noticed for deposition.  Defendant and Treating Physician were insured by the same insurance carrier, which retained separate lawyers to represent them.  Plaintiff sought a protective order to prevent Treating Physician's lawyer from having a pre-deposition conference with her lawyer, alleging that this would violate Fla.Stat. sec. 456.057(8) (2009).  Defendant's response agreed that the court could prevent Treating Physician from discussing the care and treatment of Plaintiff with her lawyer, but that she should be permitted to talk with her lawyer regarding "general deposition techniques."  The trial court denied Plaintiff's motion for protective order, stating that Treating Physician was "'entitled to a pre-deposition conference subject to attorney-client privilege with the exclusion of any discussion of health care information'."

    Plaintiff petitioned for a writ of certiorari.  The Fourth DCA denied the petition.

    In the cases relied upon by Plaintiff, courts had denied ex parte conferences between treating physicians and defendants' lawyers.  The instant situation was distinguishable.  Furthermore, the court was not willing to presume unprofessional conduct would occur simply because the same insurance company insured both Defendant and Treating Physician.  "[I]it is our understanding that the ex parte conferences to which [Plaintiff's cited cases] refer were conferences between nonparty treating physicians and the defendants’ attorneys.  We do not believe the temptation to violate a court-ordered prohibition is as strong in situations involving nonparty treating physicians and their own attorneys.  Though we are not naïve, we also are not so cynical to accept the plaintiff’s assumption that the prohibition will be disobeyed simply because the same insurer is providing attorneys to both the defendants and the oral surgeon, albeit separate attorneys.  See Comment to R. Regulating Fla. Bar 4-1.8(j) ('[T]he representation of an insured client at the request of the insurer creates a special need for the lawyer to be cognizant of the potential for ethical risks.'). As the plaintiff states in his petition, 'In theory at least, it should make no difference who pays the fees.'”  Hasan v. Garvar, 34 So.3d 785 (Fla. 4th DCA 2010).

Florida patient confidentiality statute prohibits ex parte communication between non-party physician and his own lawyer.  [Added 11/19/06]  --  Hannon v. Roper, 954 So.2d 534 (Fla. 1st DCA 2006).

Police detective's alleged deception of defendant's lawyer is not grounds for suppressing defendant's resulting statement.  [Added 11/16/06]  --  State v. Raines, 944 So.2d 421 (Fla. 5th DCA 2006).

Lawyers for defendant hospital may have ex parte contact with deceased patient's non-party treating physicians, who were hospital agents, employees, or former employees.  [Added 10/3/05]  --  Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277 (Fla. 2d DCA 2005).

    See also Lee Memorial Health System v. Smith, __ So.3d ___ (Fla. 2d DCA, No. 2D10-741, 7/16/2010) ("physician-patient privilege does not apply to [medical center]'s communications with its employee physicians because such communications are not 'disclosures' that trigger the privilege").

Lawyer represented by counsel in postconviction criminal matter did not violate Rule 4-4.2 by ex parte communication with state's attorney.  [Added 1/31/05]  --  Durie v. State, 901 So.2d 171 (Fla. 5th DCA 2005) (on rehearing).

Statements made in city commission meeting that arguably were relevant to former employee's suit against city were not improper ex parte communications under F.S. SEC. 286.0115.  [Added 2/9/04]  --  The City of Hollywood v. Hakanson, 866 So.2d 106 (Fla. 4^th DCA 2004).

Trial court erred in granting defense counsel's motion for ex parte contacts with physicians who treated deceased nursing home patient; contacts barred by patient-physician privilege.  [Added 1/29/04]  --  Knittel v. Beverly Health and Rehabilitative Services, Inc., 863 So.2d 1279 (Fla. 2d DCA 2004).

Where a contractual confidentiality agreement was determined not to protect certain information held by person, opposing counsel could communication with person in informal ex parte interview.  [Added 8/13/03]  --  Nestor v. Posner-Gerstenhaber, 857 So.2d 953 (Fla. 3d DCA 2003).