Lillian Clover v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
LILLIAN CLOVER,
Appellant,
v. Case No. 5D15-1714
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed August 5, 2016
Appeal from the Circuit Court
for Osceola County,
Diana M. Tennis, Judge.
Joseph N. D'Achille Jr., of Joseph N.
D'Achille Jr., P.A., Titusville, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and L. Charlene Matthews,
and Andrea K. Totten, Assistant Attorneys
General, Daytona Beach, for Appellee.
PER CURIAM.
Attorney Lillian Clover appeals a judgment and sentence imposed against her for
criminal contempt. The trial court determined that Clover had willfully violated a court
order by disclosing confidential medical information, which she received from the
opposing party through the discovery process, to the Florida Department of Law
Enforcement (“FDLE”). We affirm.
The indirect criminal contempt proceeding against Clover arose from her conduct
as an attorney in a family law case in which the primary issue was the time-sharing plan
for the parties’ minor child. Clover represented the Respondent/Father (“Father”). One of
the factual issues in the case was whether the Petitioner/Mother (“Mother”) abused
prescription drugs. On June 4, 2013, the trial court issued a stipulated trial order that
provided, inter alia:
4. Respondent shall be authorized to view Petitioner’s
medical and prescription records for the purpose of preparing
for the date certain trial scheduled in this matter . . . .
5. Respondent shall not copy, publish in any manner,
disseminate, or share said records with any third party.
The trial was subsequently scheduled for August 2, 2013. On that morning, Mother was
arrested in open court for six counts of “doctor shopping.”1 Because of Mother’s arrest,
the trial court continued the trial.
During the discovery process in her criminal case, Mother learned that the criminal
investigation into her acquisition of prescription drugs had been the result of information
provided by Clover to FDLE Agent Roberto Hernandez, who at the time was assigned to
a narcotics task force in Osceola County. In his deposition, Agent Hernandez testified
that Clover had reached out to his office in reference to possible “doctor shopping,” and
subsequently provided him with documentation that included the dates on which Mother
had allegedly improperly acquired prescription drugs. However, Clover did not provide
Mother’s actual medical records to Agent Hernandez.
1 § 893.13(7)(a)8., Fla. Stat. (2013).
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On March 25, 2014, Mother filed a verified petition for an order to show cause
hearing seeking to have Clover held in indirect criminal contempt for violation of a court
order. A transcript of Agent Hernandez’ deposition was attached to the petition. Clover
filed a written response to the petition arguing that Mother’s petition was meritless
because in his deposition, Agent Hernandez expressly testified that Clover had not
provided him with any medical records. Ultimately, the court issued an amended order to
show cause and scheduled an evidentiary hearing.
At the evidentiary hearing, Agent Hernandez testified about his multiple contacts
with Clover. Significantly, Agent Hernandez acknowledged receipt of a calendar from
Clover that included detailed information regarding the timing and dosages of Mother’s
acquisition of prescription drugs. A copy of the calendar was received into evidence at
the hearing. In its order determining Clover was in contempt of court, the trial court made
the following findings:
1. A Court order titled “Stipulated Trial Order on Permitting
Doctor’s Testimony Via Telephone, Admission of Certain
Documents into Evidence, Waiver of Records Custodian,
and Petitioner’s Wavier [sic] of Confidentiality of Medical
and Prescription Records”, was entered on June 4, 2013,
stating in pertinent part at paragraph 4: Respondent shall
be authorized to view Petitioner’s medical and prescription
records for the purpose of preparing for the date certain
trial” and paragraph 5: “Respondent shall not copy, publish
in any manner, disseminate, or share said records with any
third party.”
2. The Petitioner’s Verified Petition for Order to Show Cause
for Indirect Criminal Contempt filed March 25, 2013
alleges violations of the June 4, 2013 Order, and
dissemination of medical and prescription information
related to the Petitioner, . . . by Lillian Clover. Ms. Clover,
who is an attorney licensed by [T]he Florida Bar,
represented the Respondent, . . . , in custody litigation
against [Petitioner].
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3. The June 4, 2013 Order at issue is attached as Exhibit “A”.
4. On or about July 10, 2013, a few days after receiving the
medical records referred to in the June 4, 2013 Order, Ms.
Clover telephoned the Florida Department of Law
Enforcement stating that she had information related to
someone “doctor shopping”. Officer Hernandez returned
her call and ultimately Ms. Clover supplied [Petitioner’s]
name in reference to this allegation, and some information
about how she had come into possession of evidence
(representing the opposing party in a custody dispute).
She also provided a multipage document in calendar
format with notations that reference the Petitioner’s doctor
appointments, prescriptions and where they were
dispensed, and dosages of various medications. This
information led to an investigation of [Petitioner] by Officer
Roberto Hernandez of FDLE.
5. Officer Hernandez consulted his legal department due to
concerns about where this information came from, and
concerned [sic] his investigation into it may be tainted in
some way. Ultimately he had multiple conversations and
at least one meeting with Ms. Clover.
6. Ms. Clover published the Petitioner’s name and medical
information to a third party for the purpose of gaining an
advantage in the paternity case for her client.
7. Ms. Clover contends that her contact with law enforcement
and sharing of information was not a violation of the June
4, 2013 Order, and that an Order directed to “Respondent”
does not apply to her.
The trial court concluded that it was “convinced beyond a reasonable doubt that
Ms. Clover intentionally shared, or ‘published’, the Petitioner’s . . . medical and
prescription information with law enforcement within days of this Court’s confidentiality
order clearly prohibiting her to do so.” The trial court withheld adjudication of guilt and
imposed a $500 fine. The order also reflected the trial court’s intent to forward its order to
The Florida Bar.
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Clover raises several issues on appeal, only two of which merit discussion. First,
Clover contends that the order only applied to her client because paragraph five of the
June 4, 2013, order referenced only “Respondent” in prohibiting the publication,
dissemination, or sharing of Mother’s medical and prescription records with any third
party. We reject this argument. Here, Clover was serving as an agent for her client. See
Beasley v. Girten, 61 So. 2d 179, 181 (Fla. 1952) (“We are not unmindful of the rule that
counsel is the litigant’s agent . . . .”); Andrew H. Boros, P.A., v. Arnold P. Carter, M.D.,
P.A., 537 So. 2d 1134, 1135 (Fla. 3d DCA 1989) (noting that an attorney serves as agent
for his client). An individual who is not a named party can nonetheless be subject to a
court order where the individual is aware of the order and is acting as an agent for the
named party. For example, in Wilson v. United States, 221 U.S. 361 (1911), the United
States Supreme Court concluded that a corporate officer could be found in contempt for
failing to respond to a subpoena duces tecum, notwithstanding that the subpoena was
addressed only to the corporation:
A command to the corporation is in effect a command to those
who are officially responsible for the conduct of its affairs. If
they, apprised of the writ directed to the corporation, prevent
compliance or fail to take appropriate action within their power
for the performance of the corporate duty, they, no less than
the corporation itself, are guilty of disobedience, and may be
punished for contempt.
221 U.S. at 376.
Similarly, Florida Rule of Civil Procedure 1.610(c), expressly recognizes that an
injunction can be binding on a party’s attorney:
Every injunction shall specify the reasons for entry, shall
describe in reasonable detail the act or acts restrained without
reference to a pleading or another document, and shall be
binding on the parties to the action, their officers, agents,
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servants, employees, and attorneys and on those persons in
active concert or participation with them who receive actual
notice of the injunction.
We also note that accepting Clover’s disingenuous argument would mean that Clover
should not have received the confidential medical and prescription records in the first
place, given that the preceding paragraph of the June 4, 2013, order granted
“Respondent” authorization to review Mother’s medical and prescription records.
Next, Clover contends that the court order was not violated because the actual
medical records were not provided to Agent Hernandez. Clover’s argument ignores the
express language of the order that prohibited Mother’s medical and prescription records
from being copied, published in any manner, disseminated, or shared with any third party.
This broad language precluded both the written and verbal communication of the contents
of Mother’s confidential records to third persons.
We conclude that the trial court’s determination that attorney Clover willfully
violated its June 4, 2013, order is supported by the record. Consistent with the obligation
imposed on judges by the Florida Code of Judicial Conduct, a copy of this opinion will be
forwarded to The Florida Bar.
AFFIRMED.
PALMER, EVANDER and BERGER, JJ., concur.
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