FLORIDA SUPREME COURT ADOPTS “ATTORNEY-FIDUCIARY PRIVILEGE” RULE
The attorney-client privilege is one of the oldest legal concepts and the backbone of providing effective legal services. It keeps the communication between an attorney and her client secret and protects it from disclosure, with some exceptions, even when other rules compel disclosure. It is the attorney’s duty and the client’s right―an assurance that she may communicate with her attorney frankly and openly.
The privilege covers communication relating to legal representation between the lawyer and her client that the client intends not to disclose to third persons. Fla. Stat. § 90.502. This privilege is not, however, absolute and many jurisdictions have recognized an exception in fiduciary relationships. This exception allows beneficiaries of a trust to obtain privileged communication between the trustee who administers the trust for their benefit and the attorney who advised the trustee on her fiduciary duties.
In Florida, a statutory provision enacted in 2011 expressly eliminated this exception. Fla. Stat. § 90.5021. However, because the rule is partly procedural in nature, it had to be approved by the Florida Supreme Court to be fully in effect. Over the past six years, the Court repeatedly dealt with the rule, but never adopted it, nor did it rule against it. This year, after the Florida Bar’s Probate Rules Committee and the Code and Rules of Evidence Committee initiative, the Court finally adopted the rule, bringing the much needed clarity. In re Amends. to Fla. Evidence Code, So.3d, 2018 WL 549179 (Fla. Jan. 25, 2018).
The rule applies to most types of fiduciaries, including personal representatives, trustees, administrators, and guardians. Fla. Stat. § 90.5021(1). “A communication between a lawyer and a client acting as a fiduciary is [now undisputedly] privileged and protected . . . as if the client were not acting as a fiduciary.” Fla. Stat. § 90.5021(2). The Florida Supreme Court ruled that the adoption is effective retroactively to June 21, 2011, the date when it became law.
This rule may present an interesting shift in certain situations. The attorney-client privilege traditionally does not apply where the legal services were obtained to commit what the client knew was a crime or fraud or where the “communication is relevant to an issue between parties who claim through the same deceased client.” Fla. Stat. § 90.502(4)(a),(b).
The latter exception covers, for example, a situation where four children challenged the testamentary capacity of their deceased mother. The children sought to revoke probate of their mother’s wills and asserted undue influence against a fifth child, who was the only child named as beneficiary in the wills. Based on the exception, the court refused to recognize the communication between the deceased mother and the attorney who prepared the wills as privileged. Vasallo v. Bean, 208 So. 3d 188 (Fla. 3d DCA 2016).
While the newly-adopted rule recognizing the privilege between the attorney and a fiduciary clearly states that it does not affect the crime or fraud exception, it does not mention the other exceptions, including the one where “communication is relevant to an issue between parties who claim through the same deceased client.” Fla. Stat. § 90.502(4)(b). By leaving out theses remaining exceptions, did the Florida Legislature intend the attorney-fiduciary privilege to trump them? It seems so. That would mean that in situations where “communication is relevant to an issue between parties who claim through the same deceased client”, such as the one in Vasallo, but where the “deceased client” was also a fiduciary, such as if she created a trust through which the parties now claim, and also appointed herself to a fiduciary position of a trustee, the beneficiaries would not be able to break the privilege between the deceased fiduciary and her attorney who drafted the trust documents.
The foregoing provides a brief overview of the attorney-fiduciary privilege. If you are interested in more information, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help. Bart Chepenik, 305-613-3548, Brad Trushin, Office, (305) 981-8889. We answer our cell phones and text messages 24 / 7, call us today for help.