FL Bar Exam Evidence Privileges: What You Need to Know

Privilege refers to a legal protection that prevents certain communications or information from being disclosed in a court proceeding. It exists for public policy reasons—to encourage confidentiality and promote open communication in specific relationships, like between attorney and client or therapist and patient.

Unlike the Federal Rules of Evidence, which don’t explicitly list most privileges beyond the attorney-client privilege, each state has its own rules. In Florida, privileges are strictly defined by statute.

In Florida, privileges are strictly defined by statute. As stated in Fla. Stat. § 90.501, unless a privilege is expressly recognized by the Florida Evidence Code, another statute, or the federal or state constitutions, no person has the right in a legal proceeding to refuse to testify, disclose information, produce documents, or prevent someone else from doing so.

This means privileges are narrow, limited, and must be clearly grounded in law—not assumed. Every privilege discussed in this article exists because it’s specifically authorized under Florida law.

Florida Privileges 

Florida privileges include: 

• Trade Secrets: Allows a person to refuse to disclose a trade secret—such as a confidential formula, process, or design—in legal proceedings, and it may also be claimed by the owner’s agent or employee on their behalf; however, the privilege only applies if nondisclosure does not conceal fraud or result in injustice, and courts may order disclosure with protective measures when necessary. Fla. Stat. § 90.506 (2024)

• Journalists: This is a qualified privilege (meaning it isn’t an absolute right) that allows professional journalists—those regularly engaged in news gathering for recognized media outlets—to refuse to disclose confidential information or sources obtained while reporting; however, the privilege does not extend to physical evidence, firsthand observations, or video/audio recordings of crimes, and it may be overridden if the information is relevant, unavailable from other sources, and disclosure is essential to a compelling interest that outweighs the journalist’s privilege. Fla. Stat. § 90.5015 (2024)

• Accident Reports: Protects statements made by individuals involved in a crash—as well as crash reports themselves—from being admitted as evidence in civil or criminal trials, but it does not apply to physical evidence (like blood or urine tests), law enforcement observations, voluntary admissions unrelated to the report, or to DUI and reckless driving prosecutions; in criminal cases, officers may testify about statements if doing so does not violate the defendant’s right against self-incrimination and complies with the rules of evidence. Fla. Stat. § 316.066(4) and 5(c) (2024), Brackin v. Boles 452 So. 2d 540 (1984), Fla. Stat. § 90.803(8)

• Lawyer-Client Privilege: Protects confidential communications between a client and someone authorized—or reasonably believed—to be authorized to practice law, and may be claimed by the client or certain legal representatives; the privilege also applies in child support enforcement cases to communications between the Department of Revenue and the person receiving services. However, the privilege does not apply when the communication relates to a crime or fraud, a breach of duty between lawyer and client, disputes involving a deceased client, questions of competence or intent in executing legal documents, or in civil cases where parties who shared the same attorney later become adverse. Fla. Stat. § 90.502 (2024)

• Florida’s Sunshine Law requires that meetings of public agencies—such as boards and commissions—be open to the public to ensure transparency and accountability, and while attorney-client privilege is not waived in informal or non-public discussions, it does not override the Sunshine Law’s mandate that privileged discussions be disclosed if they occur during meetings subject to the law, unless a specific legal exemption applies.

• Fiduciary Lawyer-Client Privilege: Protects confidential communications between a lawyer and a client acting in a fiduciary role—such as a trustee, personal representative, guardian, or attorney-in-fact—and applies just as it would if the client were not serving as a fiduciary; the fiduciary is considered the lawyer’s only client, and the privilege remains intact even in disputes with beneficiaries, except when the lawyer’s services were used to plan or commit a crime or fraud. Fla. Stat. § 90.5021 (2024)

• Accountant-Client Privilege: Protects confidential communications between a client and their accountant made for the purpose of obtaining accounting services, and may be claimed by the client, their guardian, personal representative, or by the accountant on the client’s behalf; however, the privilege does not apply when the communication was made to further a crime or fraud, involves a breach of duty, or arises in a civil dispute between clients who shared a common interest. Fla. Stat. § 90.5055 (2024)

• Psychotherapist-patient privilege: Protects confidential communications made for the purpose of diagnosing or treating a mental or emotional condition and applies to licensed professionals—including psychologists, social workers, therapists, mental health counselors, certain medical providers, and personnel at licensed treatment facilities—as well as those reasonably believed by the patient to be qualified; the privilege may be claimed by the patient or certain legal representatives, but does not apply when the patient’s mental condition is at issue in a legal proceeding, during court-ordered examinations, or in cases involving involuntary hospitalization. Fla. Stat. § 90.503 (2024)

• Sexual Assault Counselors: Protects confidential communications between a victim of sexual assault or sexual battery and a sexual assault counselor or trained volunteer, when the communication is made for the purpose of receiving advice, counseling, or assistance related to the assault. The privilege may be claimed by the victim, the victim’s attorney, guardian, conservator, personal representative, or the counselor/volunteer on the victim’s behalf. The privilege may be waived by the victim’s written consent or overridden by court order, particularly when the victim’s mental or emotional condition is at issue in legal proceedings. Fla. Stat. § 90.5035 (2024)

• Domestic Violence / Human Trafficking Victim Advocates: Protects confidential communications between a victim and an advocate working at a certified domestic violence or human trafficking center, including trained employees or volunteers, when the communication is made in the course of providing counseling, advice, or assistance related to the abuse. The privilege may be claimed by the victim, their legal representative, or the advocate on the victim’s behalf. Exceptions apply when the victim consents, a court orders disclosure, or the victim’s condition becomes part of a legal claim or defense. The privilege does not survive the victim’s death when the mental or emotional condition is directly relevant to the case. Fla. Stat. § 90.5036 (2024) and Fla. Stat. § 90.5037 (2024)

• Husband-Wife Privilege: Florida does not recognize spousal immunity, but it does recognize a husband-wife privilege, which protects confidential communications made between spouses during the marriage. Either spouse—or their guardian or conservator—may claim the privilege, and it applies in both civil and criminal proceedings. The privilege survives divorce and prevents one spouse from disclosing confidential marital communications without the consent of the other. However, the privilege does not apply when one spouse sues the other, in criminal cases involving crimes against the other spouse or their child, or when a defendant-spouse introduces the communication into evidence. Both spouses must consent for the privilege to be waived. Fla. Stat. § 90.504 (2024)

• Clergy: Protects confidential communications made privately to a member of the clergy—including a priest, rabbi, minister, Christian Science practitioner, or anyone reasonably believed to be such—for the purpose of seeking spiritual advice or counsel. The communication remains privileged even if made in the presence of someone else, such as a spouse, so long as the presence of that person was intended to help facilitate the communication. The privilege may be claimed by the person who made the statement, their guardian, conservator, or personal representative, or by the clergy member on their behalf, with the clergy member’s authority presumed unless evidence suggests otherwise. Fla. Stat. § 90.505 (2024)

Of the enumerated FL specific privileges, it’s worthwhile spending some extra time to understand – accident reports, clergy, husband-wife, and no general doctor-patient privilege. 

Waivers and Disclosure 

Even when a communication is protected by privilege, that protection can be waived if the information is disclosed in the wrong way. In Florida, a person waives privilege by voluntarily sharing a confidential communication in a way that removes any reasonable expectation of privacy.

How Privilege Is Waived

Privilege may be waived when:

• The person holding the privilege voluntarily discloses the communication.
• A significant portion of the communication is shared with others.
• A previous holder of the privilege (like a former guardian or personal representative) made a voluntary disclosure.

Once waived, the communication may be used in legal proceedings. Fla. Stat. § 90.507 (2024)

What Doesn’t Count as Waiver

Not every disclosure destroys privilege. It is not waived when:

• The communication was disclosed involuntarily (e.g., under court compulsion or mistake).
• The person had no opportunity to assert the privilege before the disclosure happened.

In these cases, the communication is inadmissible against the privilege holder. Fla. Stat. § 90.508 (2024)

Privilege and Civil Claims

In civil litigation, if a party uses a privileged communication to support a claim or defense, the court may:

• Dismiss that claim or defense, or
• Conduct an in-camera review (private examination by the judge) to decide whether the communication should be disclosed for fairness.

Important Tips 

🚫 No General Doctor-Patient Privilege in Florida

Unlike the psychotherapist-patient privilege, Florida does not recognize a general doctor-patient privilege. This means communications between a patient and a medical doctor are not automatically protected from disclosure in legal proceedings. While medical records are still protected under HIPAA and require written authorization for release, they can be obtained through subpoena if proper notice is given to the patient and no valid objection is raised. Confidentiality may still apply in narrow contexts—such as mental health treatment—but there is no blanket privilege shielding general medical communications in court.

🔹 Florida does not recognize spousal immunity

In Florida, a spouse can be required to testify against the other spouse in both civil and criminal cases. This is different from the federal rule and some other states where one spouse can refuse to testify entirely. Florida only protects confidential communications made during the marriage through the husband-wife privilege—not the fact of testimony itself. So unless the testimony involves privileged marital communications, a spouse can be compelled to take the stand.

Conclusion: Mastering Florida’s Privilege Rules

Florida’s privilege laws are detailed, specific, and often different from the federal approach. Whether it’s the absence of a general doctor-patient privilege, the narrow scope of the husband-wife privilege, or the unique protections for sexual assault counselors and victim advocates, these distinctions matter—especially on the Florida Bar Exam.

Understanding not just what the privileges are, but when they apply, when they don’t, and how they can be waived is key to answering both multiple choice and essay questions with confidence.

If you want to go deeper into Florida-specific evidence law, we offer a Florida Evidence Guide that breaks down the distinctions in an easy-to-review Q&A format, covering the most testable concepts. For those studying for the MBE, our MBE Evidence Guide and Maps focus on high-yield federal rules and common pitfalls tested across jurisdictions.