A Florida appeals court has granted a temporary reprieve to a Coral Gables lawyer battling a subpoena under the assertion of attorney-client privilege.

The Third District Court of Appeal ruled Wednesday that Miami-Dade Circuit Judge Barbara Areces erred in ordering attorney Alba Varela to appear for a deposition, and denying the litigator's motion for protective order without granting additional scrutiny.

Varela had been subpoenaed by the OLA Condominium Association in its legal battle with Miami-Dade residents Robert Santana and Avraham Levi. The association had filed a complaint  in February 2018 seeking an injunction against Santana and Levi for appointing themselves to the community's board of directors after purchasing property within the development.

According to Wednesday's opinion, the condominium association had motioned for Varela, a non-party to the case, to be summoned for a deposition and produce "a number of files, records and documents in her possession … relating to several professional associations" involved with the litigation. The attorney objected to the subpoena in a March 2018 motion for protective order, purporting the information was "arguably confidential" due to attorney-client privilege. She also asserted the court had yet to determine who rightfully governed the association's board of directors, which in turn brought plaintiff's standing into question.

Varela's motion was denied in April 2018, and she was subsequently ordered to appear before the court with all requested documents in tow within 30 days.

Read the opinion:

The appellate panel held that the lower court ought to have given additional consideration to the litigator's contention that the materials the association sought from her were protected under attorney-client privilege.

"We hold that the trial court abused its discretion in ordering Varela to produce the subpoenaed documents without first conducting an in camera hearing to address Varela's claim of attorney-client privilege," the opinion said. The order cited a 2009 ruling by the Fourth DCA, which held a party invoking protections under attorney-client privilege is entitled to receive a review by the court to ascertain their claims.

Although the Third DCA didn't rule on the veracity of Varela's argument, the appeals court reversed and remanded the lower court's orders. The appellate opinion instructed the lower court to conduct a private hearing with the litigator before deciding whether or not to disclose the documents in question.

Varela cited the ongoing nature of the case and declined to comment on the Third DCA's ruling. Miami-based private practitioner William Essig represented the condominium association in both the trial and appellate courts. He did not immediately return the Daily Business Review's requests for comment by press time.

Related stories: