ATTORNEY CLIENT PRIVILEGE FOR FLORIDA TRUSTEES AND FIDUCIARIES

Here is a recent development regarding Florida trust law and Florida probate law which addressed a Florida evidence issue which litigation lawyers may wish to read. It deals with an evidence issue which is of concern to Florida trust litigators and Florida probate litigators , as well as those Florida lawyers handling trials in the defense of an attorney in fact created under a Florida durable power of attorney.

In 2011, Florida enacted a new law regarding whether the communications between a “fiduciary” such is a Florida trustee or a Florida personal representative of a Florida estate are privileged or not. Those communications between an attorney and a client are privileged in Florida: meaning, that such communications are not “discoverable” by other persons. This had always been an interesting legal issue in the fiduciary context. Consider the Florida trustee. A Florida trustee is sued by trust beneficiaries. The Florida trustee hires a Florida trust lawyer to defend the trustee. Most people understand that communications between the Florida trustee and his or her Florida lawyer are privileged: they cannot be discovered by the beneficiaries who are suing the trustee. A question had always arisen about whether this was fair or not. After all, a Florida trustee has a duty to its beneficiaries. And, conceivably, the work of the Florida trustee’s lawyer might actually benefit the beneficiaries who might be, in some sense the “real ” client.

But this analysis, or discussion, became pretty much academic after 2011. In that year, the Florida legislature enacted a change in chapter 90 of the Florida statutes, the Florida evidence code . New Florida Statute § 90.5021 address this issue head on for those people serving in a fiduciary role in Florida, such as a trustee, a Guardian, personal representative, a curator, or an attorney-in-fact under a Florida power of attorney. It basically says that the Florida trustee, or other Florida fiduciary, has the attorney-client privilege for communications with his or her Florida lawyer. In fact, the Florida trust code was changed based on this new evidence statute.

Everybody knows that a Florida trustee has a duty to inform and to account to the Florida trust beneficiaries. The duties of a Florida trustee are numerous, and many are listed in the Florida trust code, which is chapter 736 of the Florida statutes. Now, Florida Statutes § 736.0813 requires, as part of a Florida trustee’s duty to inform to trust beneficiaries, that the Florida trustee inform trust beneficiaries when it sends out a so-called “notice of trust” that the fiduciary lawyer client privilege applies with respect to the trustee and any attorney employed by the trustee. Notice to trust beneficiaries: you cannot get emails, letters, faxes, memos or even Post-it notes between a Florida trustee and the Florida trustee’s trust lawyer.

So, what’s the concern? Well, over the last year or so,the Florida Bar Code and Rules of Evidence Committee made certain recommendations to the Florida Supreme Court regarding the newly enacted section of the Florida Evidence Code dealing with fiduciaries and the fiduciary-client privilege.

On December 12, 2013, the Florida Supreme Court announced that it refuses to follow the recommendations of the Committee to the extent that New Florida Statute § 90.5021 dealing with the fiduciary lawyer- client privilege is procedural.

I have reprinted below this Florida statute dealing with the fiduciary lawyer client privilege:

Florida Statutes § 90.5021 Effective: June 21, 2011

90.5021. Fiduciary lawyer-client privilege

(1) For the purpose of this section, a client acts as a fiduciary when serving as a personal representative or a trustee as defined in ss. 731.201 and 736.0103, an administrator ad litem as described in s. 733.308, a curator as described in s. 733.501, a guardian or guardian ad litem as defined in s. 744.102, a conservator as defined in s. 710.102, or an attorney in fact as described in chapter 709.

(2) A communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure under s. 90.502 to the same extent as if the client were not acting as a fiduciary. In applying s. 90.502 to a communication under this section, only the person or entity acting as a fiduciary is considered a client of the lawyer.

(3) This section does not affect the crime or fraud exception to the lawyer-client privilege provided in s. 90.502(4)(a).

( Added by Laws 2011, c. 2011-183, § 1, eff. June 21, 2011.)