Florida Trust Lawsuits and Attorney-Client Privilege
What is attorney-client privilege? What does attorney- client privilege have to do with a Florida trust lawsuit? What should I know about attorney-client privilege if I am involved in West Palm Beach litigation? Can the other side request documents directly from my Florida trust lawyer? Can a Florida trial court compel my probate law firm to disclose records of a trust or estate?
Attorney-Client Privilege and Discovery
Disputes regarding attorney-client privilege may occur during a Florida trust or probate lawsuit. This is because, during inheritance litigation, trust beneficiaries, and other party’s to the lawsuit, usually have their Florida lawyer conduct extensive discovery.
During discovery, a party to a trust lawsuit may request the disclosure of financial documents. A party may also try to request other documents from the law firm that represents the trustee or opposing party, including email communications, internal notes about the case, etc. Can a Florida law firm just hand over documents to the other side without the consent of his or her client?
Florida Statute 90.502
Attorney-Client Privilege can prove to be a very valuable privilege during litigation. It can protect you from having to disclose certain confidential information. It is important that you become familiar with your rights regarding attorney-client privilege. Your West Palm Beach trust attorney should be able to inform you about attorney client-privilege.
In addition, you should read Florida Statute 90.502. This is the Florida statute that attorney-client privilege is governed by. Per the statute, as a client, you have “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.”
It is important to keep in mind that there are exceptions to attorney-client privilege, which are also described in Florida Statute 90.502.
If you are the trustee of a Palm Beach estate, or involved in a probate dispute, you may also want to consider reading Florida Statute 90.5021. This statute extends the attorney-client privilege to protect Florida lawyers and clients acting as trustees, personal representatives, or other fiduciaries.
Recent Trust Litigation Involving Attorney-Client Privilege
Hett v. Barron-Lunde, a January 22, 2020 Second DCA opinion, is a good example of a Florida trust lawsuit involving a dispute over attorney-client privilege. Here, a trustee seeks certiorari review of a discovery order compelling the disclosure of personal financial information, nonparty trust records, and attorney-client privileged information.
In regards to the attorney-client privileged information, the trustee specifically challenges the trial court’s order compelling the disclosure of records in the possession of her attorneys retained to set up the Trust.
Here, the beneficiaries served a subpoena for the trust records directly on the trustee’s attorney , rather than on the trustee herself. The trust was a nonparty in the lawsuit. Should the trial court have issued the order compelling the trustee’s attorneys to disclose the trust documents?
The appellate court explained that a ” party who seeks third-party financial records and records of a nonparty maintained by an attorney bears the burden of proof and must show need for the discovery outweighs the privacy rights of the third party.” This requirement is to prevent irreparable harm that could occur if irrelevant, yet confidential, information is disclosed.
The trial court in this Florida trust lawsuit did not implement any safeguards. Particularly, no in camera inspection took place to determine whether attorney-client privilege applied. Furthermore, the trial court did not address the privilege issue raised by the trustee, and failed to address the objection made by the trustee’s attorneys regarding the nonexistence of a waiver of consent and attorney-client privilege.
It was clear that the trustee asserted her privilege under Florida Statute 90.502 to prevent the disclosure of confidential communications with her attorneys when she raised the issue to the trial court and when her attorneys also raised an objection. The Second DCA found that it was an error for the trial court to compel the disclosure of the records.