Probate litigation and Attorney-client privilege

Where There’s a Will, There May Not Always Be a Way for Attorney-Client Privilege

Attorney-client privilege may not always apply in probate litigation. In fact, the Third District Court of Appeal has held that under the Florida Evidence Code, a lawyer may not invoke attorney-client privilege under certain circumstances.

Attorney-client privilege is a key hallmark of the attorney-client relationship. The privilege prevents disclosure of confidential communications pertaining to legal advice between a client and her attorney. Attorney-client privilege therefore promotes candor and better representation. Rule 4-1.6(a) of the Florida Rules of Professional Conduct states that “[a] lawyer must not reveal information relating to representation of a client . . . unless the client gives informed consent.” Further, under the official comments to Rule 4-1.6, a lawyer has an ethical obligation to assert attorney-client privilege on a client’s behalf, including during proceedings involving evidentiary matters.

The Florida Evidence Code also emphasizes the importance of attorney-client privilege: “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.” See § 90.502(2), Fla. Stat. (2017).  However, such a privilege is not absolute. Under § 90.502(4)(b), attorney-client privilege does not apply when “communication is relevant to an issue between parties who claim through the same deceased client.” For probate litigation in particular, this provision may have a tremendous impact on the scope of a lawyer’s duty to protect communications with a deceased former client.

The Third District addressed this issue in Vasallo v. Bean. See 208 So. 3d 188 (Fla. 3d DCA 2016).

In that case, four children challenged the testamentary capacity of their deceased mother. The children sought to revoke probate of their mother’s wills. They asserted undue influence against a fifth child, who was the only child named as beneficiary in the wills. The estate planning attorney who prepared the deceased mother’s wills, Vasallo, invoked attorney-client privilege during a deposition regarding the mother’s “reasons for disinheriting” the other children during the making of the wills. Id. at 189.

However, the Third District refused to recognize the attorney-client privilege. Citing a line of Florida cases, the court explained that “Florida courts have interpreted the Ethics Code’s rule of client-lawyer confidentiality to be broader in scope than the Evidence Code’s attorney-client privilege.” Id. The court held that under § 90.502(4)(b), parties cannot invoke attorney-client privilege for will contests where multiple parties claim through the same decedent. To do so, the court warned, “prevents the swift resolution of the conflict and frustrates the public policy of expeditiously distributing estates in accordance with the testator’s wishes.” Id. Therefore, for probate litigation involving challenges to testate or intestate succession, attorney-client privilege may not hold, and evidence may be compelled from a lawyer. Under Vasallo, a testator’s communications with her attorney might not stay confidential. Testators should keep this in mind during estate planning.

Call on Brad Trushin, Esq., (305) 981-8889, cell 305-321-4946 or Bart Chepenik, (305) 981-8889, cell 305-613-3548 for help on any probate legal matter. We take calls daily, seven days a week.

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