Ward's Estate Wins Attorney-Client-Privilege Battle v. Guardian: New Blanket-Privilege Legislation Proposed to Avoid These Disputes
Tripp v. Salkovitz, __ So.2d __ (Fla. 2d DCA Feb 08, 2006)
Adult Comprehensive Protection Services ("ACPS") was appointed the decedent's plenary guardian prior to his death. Following his death, the decedent's estate sued ACPS for negligence and breach of fiduciary duty. During the discovery process the estate filed a motion seeking an order from Pinellas County Judge Kelly N. Khouzam addressing the following:
- requiring the production of documents regarding confidential communications between ACPS and its lawyer during the pendency of the guardianship, and
- ruling on whether ACPS could raise the attorney-client privilege at deposition in response to questions related to confidential communications between ACPS and its lawyer during the pendency of the guardianship.
The probate court ruled in favor of the ward's estate on both issues, determining that the attorney-client privilege now belonged to the estate. The problem with this ruling is that it failed to recognize that some of the confidential communications between ACPS and its lawyer had to do with protecting ACPS' self interests: not its ward. The Second DCA reversed the trial court with instructions to parse its ruling so that communications between ACPS and its lawyer having to do with protecting ACPS' self interests remained privileged. The Second DCA based its ruling on the same logic it applied when addressing the same issue in a trust context:
In Jacob, this court explained who holds the attorney-client privilege in trust situations:
Usually, a lawyer retained by a trust represents the trustee, not the beneficiary, even though the fees are paid with trust funds that would otherwise go to the beneficiary. If the attorney represents the trustee, the trustee holds the lawyer-client privilege. In some circumstances, however, the beneficiary may be the person who will ultimately benefit from the legal work the trustee has instructed the attorney to perform. See, e.g., Riggs Nat'l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 711 (Del.Ch.Ct.1976) (noting that legal memorandum concerning trust tax issues, written before beneficiaries' litigation against trustee began, was prepared for the benefit of the trust beneficiaries) (cited in [ Barnett Banks Trust Co., N.A. v.] Compson, 629 So.2d [849, 850 (Fla. 2d DCA 1993)] ). In that situation, the beneficiary may be considered the attorney's "real client" and would be the holder of the lawyer-client privilege. But if the "real client" is the trustee, the beneficiary would have to prove the existence of some exception to overcome the privilege.Jacob, 877 So.2d at 937 (some citations omitted). (Emphasis added.)
New legislation should make these types of disputes a thing of the past. As I reported here, the Florida Bar's Probate & Trust Litigation Committee is proposing the following new blanket-privilege legislation:
(Passed by Committee at meeting in Palm Beach, August, 2005 and passed by the Executive Council of RPPTL in November 2005)
90.5021 Fiduciary Lawyer- Client Privilege
(1) A communication between a lawyer and client acting as a fiduciary described in subsection (2) shall be privileged and protected from disclosure under section 90.502 to the same extent as if the client were not acting as fiduciary. For the purpose of applying section 90.502 to such a communication, the person or entity acting as fiduciary is the lawyer's only, real and true client.
(2) For the purpose of this section, a client acts as a fiduciary when serving as personal representative as defined in section 731.201, an administrator ad litem as used in section 733.308, a curator as used in section 733.501, a guardian or guardian ad litem as defined in section 744.102, a conservator as defined in section 710.102, a trustee as used in section 731.201 (35), and an attorney-in-fact as used in Chapter 709.
