Tag Archives: attorney/client privilege

Florida Supreme Court specifically incorporates lawyer-fiduciary privilege into the Florida Evidence Code, F.S. §90.5021

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

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Filed under .S. Supreme Court, Attorney fiduciary privilege, attorney-client privilege, attorney/client privilege, Attorney/client privilege and confidentiality, Confidentiality and privilege, Florida Bar, Florida Statutes lawyer fiduciary privilege, Florida Supreme Court, joe corsmeier, Joseph Corsmeier

ABA Formal Opinion 477 addresses lawyer ethical duties when transmitting client information over the internet

Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 477, which was issued on May 11, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  The Formal Opinion is here: ABA Formal Opinion 477.

ABA Formal Opinion 477 is an update opinion which specifically addresses “securing communication of protected client information” over the internet.

The Formal Opinion states:  “(i)n Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.”

The opinion concludes: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

Bottom line:  This ABA opinion addresses the ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules of Professional Conduct and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this ethics alert 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

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under ABA formal opinions, Attorney/client confidentiality, Confidentiality, Confidentiality and privilege, lawyer confidentiality, Lawyer ethical duties when sending confidential information over the internet, Lawyer ethics, Lawyer Ethics and Professionalism, Uncategorized

Lawyer-Client Confidentiality and Privilege: What is the Difference?

This Ethics Alert blog will discuss the terms lawyer-client confidentiality and lawyer-client privilege are often used interchangeably and the differences between them may become somewhat blurred.  Although both terms address information related to the client that a lawyer cannot reveal and both are used primarily to protect the client’s ability to confide freely with the lawyer, they are not synonymous.  There are several significant differences with regard to their scope, exceptions, and application.

The primary ethics rule addressing lawyer-client confidentiality in Florida Bar Rule 4-1.6, which is substantially similar to ABA Model Rule 1.6.  The Comment states that “(a) fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation…” A violation of the Bar rule may result in disciplinary sanctions.

Absent an exception, confidential information remains confidential during the representation and after the client dies.  The lawyer should not reveal confidential information if it will injure the client’s interests (absent an exception or legal compulsion), and it should only be disclosed to advance those interests.

A client may give informed consent for the lawyer to reveal confidential information or information that is protected by the privilege and consent may be implied under certain circumstances.  The client must give consent to the waiver of confidentiality; however, the privilege may be inadvertently and impliedly waived by the failure to object to testimony about the privileged communications.

In contrast to privilege, the lawyer’s ethical duties regarding confidentiality are much more extensive in scope and application, particularly as to what information is protected.  Confidentiality applies not only to information received from the client but all information related to the representation, regardless of whether the information came from the client or another source.  In addition, confidentiality applies in all situations, not just in litigation.

The lawyer-client privilege is a litigation concept that arose from the principles of evidence. In Florida, the privilege is set forth in F.S. 90.502.  The client, or someone acting legally for the client, may claim the privilege, typically through the lawyer.  F.S. 90.502(e) states that a lawyer is presumed to have the authority to assert the privilege on behalf of the client.  The privilege only protects communications between the client and lawyer in a litigation context, the communications are not protected if available from another source, and the communications are not necessarily protected simply because of the communication to the lawyer.  The Comment to Bar Rule 4-1.6 states “(t)he attorney-client privilege and work-product doctrine apply in judicial and other proceedings…”

The “crime-fraud” exception to the privilege in F.S. 90.502(4)(a) permits the disclosure of information communicated to the lawyer if the client attempts to use the lawyer’s services to commit or cover up a crime or fraud.

Florida Bar Rule 4-1.6(b) requires disclosure of confidential information to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another.  This mandatory exception is different from the crime-fraud exception to privilege in that it requires the threat of substantial injury or death to require that the information be revealed.  There are other exceptions under Bar Rule 4-1.6(c) which permit (but do not require) disclosure by the lawyer.

Even if information is not covered by privilege, it may still be confidential.  Depending on the circumstances, a lawyer may also be compelled to reveal the information regardless of whether it is privileged or confidential.

Bottom line:  Although the use of the terms “lawyer-client confidentiality” and “lawyer-client privilege may often be used interchangeably, they are very different in concept, scope, and application.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice 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

jcorsmeier@jac-law.com

www.jac-law.com

 

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