ORDER AND MEMORANDUM OPINION ON APPLICABILITY OF CRIME-FRAUD EXCEPTION

MICHAEL G. WILLIAMSON, Bankruptcy Judge.

The Defendants seek discovery of communications between the Plaintiff and her attorneys relating to a state court wrongful death settlement. The Plaintiff, naturally, claims those communications are protected from disclosure under the attorney-client and work product privileges. The Defendants, however, have invoked the crime-fraud exception to these privileges. The question before the court is whether the Defendants have presented a prima facie case that the crime-fraud exception applies. For the reasons discussed below, the Court concludes the crime-fraud exception does not apply. Accordingly, the Defendants' Amended Motion to Compel Discovery should be denied.1

Background

The Parties

The Plaintiff in this proceeding is Sally Garcia. Sally, and her husband (Samuel Garcia, Jr.), are the parents of Samuel Garcia, III, who was killed in an accident caused by David Holdsworth (David was driving under the influence of alcohol at the time of the accident). The Defendants are David Holdsworth and his parents, Leslie Holdsworth and John W. Holdsworth, and a family business, Holdsworth Properties, LLC.

Gravamen of the Complaint and Answer

Sally Garcia (as a parent and personal representative) and Samuel Garcia sued the Defendants for wrongful death. The parties settled that case for approximately $1.8 million. Sally alleges that the Defendants breached the settlement agreement by failing to pay any of the amounts due from them under the agreement. She has now brought this proceeding to enforce the settlement agreement.

The Holdsworths have asserted duress as an affirmative defense to the breach of contract claim. According to the Holdsworths, the Garcias and their lawyers threatened adverse consequences in the criminal court if the Holdsworths did not agree to a financial settlement that was disproportionate in terms of what could have been recovered in a wrongful death action.

The Settlement

At the time the wrongful death case was pending, David Holdsworth was being charged with DUI manslaughter. So the settlement agreement was being negotiated while the DUI manslaughter case was pending. In fact, the timing of the settlement agreement (in the wrongful death case) and the plea and sentencing (in the DUI manslaughter case) were substantially contemporaneous. The plea was entered on December 9, 2009; the settlement agreement was executed on December 14, 2009; and the sentencing hearing took place on December 18, 2009.

It appears that part of the bargained-for consideration for the settlement agreement was a request for leniency by the Garcias. In the letter, the Garcias asked the judge presiding over the criminal case to sentence David to jail for only one year. At the time, David was facing a maximum 15-year sentence, with a mandatory 4-year minimum (the sentence under the guidelines was 10.6 years). In exchange, the Holdsworths agreed to pay the Garcias $1.8 million. GEICO paid its $100,000 portion. The balance of $1.7 million has not been paid.

Despite a letter requesting leniency from the Garcias, David Holdsworth was sentenced to five years in prison. After the sentencing hearing, the Holdsworths immediately stopped payment on the initial settlement payment (which was given to the Garcias two days before sentencing) and disavowed any further obligation under the settlement agreement on the basis that it was induced by the Garcias and their attorneys through fraud, duress, coercion, overreaching, and extortion.

The Discovery

This proceeding is now in the discovery phase, and the Holdsworths are seeking all communications between the Garcias' lawyers in the wrongful death case. The Holdsworths contend those documents should be produced under the crime-fraud exception to the attorney-client privilege. According to the Holdsworths, the Garcias extorted them under section 836.05, Florida Statutes. As proof of that extortion, the Holdsworths have submitted letters that the Garcias' attorneys sent to the attorneys for the Holdsworth during the months leading up to the settlement agreement.

The Holdsworths argue that the letters from the Garcias' counsel during that time period are sufficient to establish their prima facie case under the crime-fraud exception. In response, Sally Garcia has filed additional letters from the Holdsworths' lawyers that she argues demonstrate that the communications between the lawyers leading up to the settlement agreement did not rise to the level of fraud or a crime.

The Letters

The letters between counsel for the respective parties span from March 19, 2008 (when a criminal defense attorney provided the representation letter to the Garcias' counsel) to December 16, 2009 (when the Garcias' lawyer sent a letter to the criminal court judge requesting leniency in sentencing). Throughout these negotiations, it appears that the criminal defense attorneys for David Holdsworth took the lead on behalf of all of the Defendants.2

The various letters between counsel during that time period addressed the following topics:

The fact that there was a tie-in between the wrongful death settlement and the upcoming trial or sentencing in the criminal case was certainly obvious to all. In fact, there are various references to this tie-in in the letters drafted by the lawyers for both parties. In one instance, the Holdsworths' counsel, in response to "various letters threatening suit, passive restraint, etc.," stated: "Frankly I am not sure I understand their need, given the leverage you possess and what I thought was a productive meeting. I would perhaps understand it better if this were a simple civil lawsuit."9 The Holdsworths' attorney also repeatedly referred to the proposed settlement amount as a "restitution payment" — the term typically used in the context of criminal cases rather than civil cases. The Holdsworths' counsel also noted "our clients respective interests remain concurrent, which, given the circumstances, is a plain reference to the wrongful death settlement incorporating a plea for leniency.

In a similar vein, the Holdsworths' counsel, in a June 29, 2009 letter communicating a global settlement offer, recites the proposed financial terms and then states: "This would involve resolution of both cases. If you think we are on the right track we can discuss the criminal case on a mediation phone call with the mediator. Any resolutions of the two cases would necessarily, of course, involve full disclosure to and approval by the State Attorney's Office." Indeed, the specific tie-in between the criminal case leniency plea and the wrongful death settlement was referenced by the Garcias on more than one occasion:

Conclusions of Law

Rule 501, Federal Rules of Evidence, provides that state law governs the applicability of the attorney-client (and work product) privileges in a civil case pending in federal court if state law supplies the decision regarding a claim or defense.14 Since that is the case here, it is state law that will be determinative of the privilege issues raised by the parties. Under the Florida Evidence Code, a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications made in the rendition of legal services to the client.15

There is no lawyer-client privilege, however, when the services of a lawyer were sought and obtained to enable or aid the client in committing a crime or fraud.16 This is known as the crime-fraud exception to the attorney-client privilege. In applying this exception, the dispositive question is whether the attorney-client communications are part of the client's effort to commit a fraud or crime.17 The party invoking the crime-fraud exception has the initial burden of presenting a prima facie case that the crime-fraud exception exists.18

The burden then shifts to the party asserting the attorney-client privilege to demonstrate by a preponderance of the evidence that there is a reasonable explanation for the conduct in question.19 It is up to the court to decide whether the explanation is sufficient to rebut the evidence presented by the party invoking the crime-fraud exception. If the court accepts the explanation, the privilege remains. Otherwise, the privilege is lost.20

The Court must now consider whether the Holdsworths have made out a prima facie case that the crime-fraud exception applies. As a starting point, it is not uncommon for a manslaughter case — DUI or otherwise — to be accompanied by a civil wrongful death action. Nor is it uncommon for pleas to be entered as part of the criminal prosecution and for wrongful death cases to be settled. This raises the overarching question of whether including a plea of leniency (in a criminal case) as part of a wrongful death settlement constitutes the crime of extortion under Florida law.

The crime of extortion occurs as a general proposition when one maliciously threatens — whether verbally or in writing — to accuse another of any crime or to expose another to disgrace with the intent to extort money or gain any pecuniary advantage with the intent to compel the person so threatened to do any act (or refrain from doing any act) against his or her will.21 From my review of the plain language of the statutory definition of extortion (and the case law interpreting it), it is the Court's conclusion that there is no per se commission of extortion simply by including a plea for leniency in a wrongful death settlement.

On the other hand, the Court can see circumstances where threats of criminal prosecution could be malicious within the terms of the extortion statute. The Court has reviewed the three primary cases relied on by the Holdsworths: BNP Paribas v. Wynne,22 Gordon v. Gordon,23 and Berger v. Berger.24 Those appear to be three of the leading cases discussing extortion in this — or least a similar — context. The Court has also reviewed numerous other cases discussing extortion in the context of one party attempting to gain a pecuniary advantage in a settlement. And from its review of all of those cases, the Court concludes there are three primary factors that should be considered when determining whether settlement negotiations constitute extortion.

Those three factors are: (1) whether any discussions about a criminal prosecution were incidental to the overall settlement, (2) whether any discussion of the criminal case was entirely one-sided or whether both sides viewed it as reasonable and to their advantage to connect the timing of the settlement of the wrongful death case with a plea for leniency in connection with the sentencing hearing, and (3) any other extrinsic evidence of malicious activity on the part of any party to the settlement.

For instance, in Gordon v. Gordon, the husband alleged that his wife extorted him into entering into a property settlement agreement. According to the husband, his wife knew he had not filed any tax returns for 15 years, she had previously used that information to extort money and gifts from him, and her attorney repeatedly stated during discovery that his tax returns would need to be produced if he didn't settle the case.25 The Court also observed that the settlement agreement treated the wife with extraordinary generosity.26 On those facts, the court concluded the ex-wife had extorted the husband.

It is apparent from Gordon, that the discussion about any potential criminal prosecution was not incidental to the settlement discussion. Indeed, it was the central focus of the settlement: either the husband settled the case or his failure to file his tax returns was going to be exposed. The discussion in that case was entirely one-side. Again, it was a "do this or else" situation. There was no mutual benefit to the parties. And it is plainly apparent that the ex-wife's behavior was malicious.

Here, discussion of the criminal prosecution was incidental to the settlement. It came up because the civil and criminal cases were pending at the same time. This is not a case where — like in many cases where courts have found extortion exists — one party brings the threat of criminal prosecution up out of the blue to gain negotiating leverage in a settlement. In fact, the Garcias did not threaten to bring criminal charges here. Those charges were already pending. At worst, they threatened to turn over some additional information to the state attorney and not cooperate in the sentencing. It is not clear, however, that the Garcias had any information that the state attorney did not already have. Nor is it clear that the information the Garcias had would have led to any additional charges. In any case, the Court concludes from its review of the entirety of the settlement letters offered into evidence that the discussion of the criminal case was merely incidental to the settlement.

Moreover, the discussion here was not one-sided at all. Both parties discussed the possibility of a global settlement. There is repeated discussion back-and-forth about a plea of leniency as part of the wrongful death settlement. And it is apparent that the settlement was to both parties' advantage.

Finally, there is no evidence of malicious behavior on the part of the Plaintiff. Perhaps the best evidence of that is the statement by the Defendants' lawyer during settlement negotiations that the parties' interests are "concurrent."

Conclusion

As Judge Proctor recognized in In re Warner, the attorney-client privilege is of vital importance to the legal system.27 An attorney's ability to render sound legal advice or advocate for his or her client depends on the attorney being fully informed. The attorney-client promotes full disclosure by the client by protecting the client's confidential communications. Clients would not be willing to fully disclose information to their attorneys if their confidential communications were routinely disclosed.

For that reasons, the Holdsworths must make a prima facie showing that the transaction that the communications relate to is fraudulent in order to invoke the crime-fraud exception. That means the Holdsworths must offer evidence that — if unrebutted — would result in a finding of fraud. As the United States Supreme Court in Clark v. United States said: "To drive the privilege away, there must be `something to give colour to the charge.'"28 It is the Court's conclusion that there is nothing here to give "colour to the charge." Accordingly, the Court concludes that the Holdsworths are not entitled to invoke the crime-fraud exception.

Importantly, the Court's conclusion with respect to the existence of extortion is limited to this discovery context. The Court has only reviewed the evidence offered to date by the parties in making its determination. That evidence is sufficient for resolving this discovery issues. But nothing in the Court's ruling today precludes the Holdsworths from raising the affirmative defense of duress or unconscionability. Accordingly, it is

ORDERED:

1. The Defendants' Amended Motion to Compel Discovery is DENIED.

2. The crime-fraud exception to the attorney-client privilege does not apply to the settlement negotiations with respect to the settlement of the state court wrongful death action.

DONE and ORDERED.