Hello everyone and welcome to this Ethics Alert, which will discuss the recent Florida Supreme Court opinion adopting and incorporating lawyer/fiduciary privilege into Florida Evidence Code, F.S. §90.5021. The Supreme Court opinion adopting the revisions is In Re: Amendments to the Florida Evidence Code – 2017 Out of Cycle Report, Case No. SC17-1005 (January 25, 2018) and the court’s opinion is here: http://www.floridasupremecourt.org/decisions/2018/sc17-1005.pdf
As background, in 2011, the Florida Legislature enacted F.S. §90.5021, which applies the privilege to attorney communications with a client who is a trustee, personal representative, or guardian to the same extent as if the client were not acting as a fiduciary. The statute was intended to end the issue of whether beneficiaries should be given access to information and advice given to fiduciaries by their lawyers and the statute appeared to confirm that they should not be provided such information and advice.
Also in 2011, the Florida Bar’s Probate Rules Committee petitioned the Florida Supreme Court to adopt an amendment to Florida Probate Rule 5.240(b)(2), which provides the requirements for notices of estate administration. The amendment required the notice to include a statement that “the fiduciary lawyer-client privilege in section 90.5021, Florida Statutes, applies with respect to the personal representative and any attorney employed by the personal representative.” This probate rule was approved by the Florida Supreme Court, effective September 28, 2011.
The Florida Evidence Code provisions which contain substantive law are reviewed and implemented by the Florida legislature and the procedural provisions are reviewed and implemented by the Florida Supreme Court; therefore, the court does not review and implement substantive law provisions.
In 2014, the Florida Supreme Court declined to adopt proposed F.S. §90.5021, which would have protected attorney/fiduciary privilege in the Florida Statutes. This created a conflict with the previously approved Florida Probate Rule, which applied the privilege created by the 2011 F.S. §90.5021 to fiduciaries, which caused uncertainty.
To attempt to resolve this uncertainty, The Florida Bar’s Probate Rules Committee and the Code and Rules of Evidence Committee filed an out of cycle report and petition requesting the Court to resolve the conflict and implement the statutory provision to the extent that it is procedural. In response to that petition, the Florida Supreme Court issued its opinion adopting §90.5021, Fla. Stat., which provides that the attorney-client privilege applies even when the client is a fiduciary to the extent that it is procedural. The opinion stated that the provision “is effective retroactively to June 21, 2011, the date it became law.”
Bottom line: I have discussed this issue and the uncertainty with lawyers and in seminars since the issue arose in 2014. This opinion resolves the uncertainty and protects the lawyer/fiduciary privilege along with Florida Probate Rule 5.240(b)(2) and it is unlikely that the legislature will challenge the statutory provision as substantive.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670