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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About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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