Florida Statute 90.502
What is Florida Statute 90.502? Is this an important part of Florida’s Evidence Code? What are the exception to attorney-client privilege according to this Florida Statute? You may want to read Vasallo v. Bean, a recent case from Florida’s Third District Court of Appeal.
90.502 Lawyer-client privilege.
(1) For purposes of this section:
(a) A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
(b) A “client” is any person, public officer, corporation, association, or other organization or entity, either public or private, who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer.
(c) A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:
1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2. Those reasonably necessary for the transmission of the communication.
(2) A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.
(3) The privilege may be claimed by:
(a) The client.
(b) A guardian or conservator of the client.
(c) The personal representative of a deceased client.
(d) A successor, assignee, trustee in dissolution, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence.
(e) The lawyer, but only on behalf of the client. The lawyer’s authority to claim the privilege is presumed in the absence of contrary evidence.
(4) There is no lawyer-client privilege under this section when:
(a) The services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.
(b) A communication is relevant to an issue between parties who claim through the same deceased client.
(c) A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.
(d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.
(e) A communication is relevant to a matter of common interest between two or more clients, or their successors in interest, if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest.
(5) Communications made by a person who seeks or receives services from the Department of Revenue under the child support enforcement program to the attorney representing the department shall be confidential and privileged as provided for in this section. Such communications shall not be disclosed to anyone other than the agency except as provided for in this section. Such disclosures shall be protected as if there were an attorney-client relationship between the attorney for the agency and the person who seeks services from the department.
Vasallo v. Bean
- Here, Mr. Vasallo sought certiorari review from Florida’s third District Court of Appeal.
- His petition was denied.
- Not surprisingly, the Court recognized that Fla. Stat. 90.502(4)(b) is an exception, or a “carve out,” to the attorney client privilege which generally prohibits an attorney from testifying about client matters, even when the client is deceased.
- Palm Beach probate litigators know that the exception is when parties to a suit take from the same deceased person.
- Does this opinion merely re-state what the legislature has put in black and white in our evidence code?
- If you are faced with a probate appeal, you may wish to contact Robert Hauser, a partner at Pankauski Hauser PLLC in West Palm Beach, who is Board Certified in Appellate Law: 1-561-475-2099 Ext. 102