Fiduciary Exception for Attorney-Client Privilege is Extinct in Florida
If you are an attorney hired by a fiduciary, whether it be a trustee, a guardian, or a personal representative, you not only are working for the fiduciary, but you are also working for the best interests of the third party ward or beneficiary. However, can the beneficiary come forward and demand access to privileged communications between the fiduciary and the fiduciary’s attorneys? The “fiduciary exception” to the attorney-client privilege would allow beneficiaries to demand access, as long as the information is related to the normal administration issues of the trust or estate. Because the beneficiary is the intended third party beneficiary of the trust or estate, they are entitled to the information related to the trust or estate.
The original rule created confusion and uncertainty for fiduciaries and their attorneys, so Florida legislatively abolished the “fiduciary-exception” rule by adopting Fla. Stat. § 90.5021. Specifically § 90.5021(2) states that any communication between a lawyer and client acting as a fiduciary is privileged and protected to the same extent as if the client was not a fiduciary. However, there was still much litigation over this issue, and the Supreme Court of Florida on more than one occasion expressed concerns over its constitutionality. However, the Supreme Court of Florida finality resolved the issue in In re Amends. to Fla. Evidence Code, No. SC17-1005 (Fla .Jan. 25, 2018), in which it upheld the constitutionality of the statute.
So what does this mean for beneficiaries? Effectively, it means that you will not be entitled to any information or communications that are protected by attorney-client privilege. But this is good news for guardians, trustees, and personal representatives; the statute allows these individuals to receive candid legal advice and to talk to their attorneys freely and openly without the possibility that it could be used against them. This article is meant to provide a brief overview of attorney-client privilege for fiduciaries. Individuals who have questions about attorney-client privilege or acting as a fiduciary should consult an attorney. Please do not hesitate to contact the attorneys Bart Chepenik, JD, LL M, 305-613-3548 or Brad Trushin, Esq. 305-981-8889 of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning and probate litigation needs.