The Attorney-Client Privilege and the 'Complete Lawyer': More than Mere Legal Advice
In order to be effective, trusts and estates attorneys must not only tell their clients what the law is, they also need to make recommendations on how their clients should proceed given the status of the law. For example, counseling a trustee on the meaning of Florida's "prudent investor rule" (F.S. 518.11) isn't very helpful if you can't provide options and recommendations to the trustee for applying this general rule to the concrete facts of a particular deal. Although the business-evaluation portion of this discussion is likely to focus on non-law issues, the communication is undeniably made for the purpose of providing effective legal advice.
If ever confronted with a challenge to the privileged nature of such communications, Florida trusts and estates attorneys should find comfort in Pritchard v. Erie County, a recent 2nd U.S. Circuit Court of Appeals opinion reported on in The Attorney-Client Privilege and the 'Complete Lawyer': More than Mere Legal Advice. Here are a few excerpts from the linked-to opinion:
When clients seek legal advice, they have a right to expect their lawyers to do more than scan in the pertinent statute and e-mail it to the client, or recite to the client the elements of the applicable tort or criminal offense. Clients want lawyers to guide them, to provide viable options, and to suggest to them what they should do given the status of the law. A lawyer capable of doing that is very much acting as a lawyer. A client with the benefit of the services of such a "complete lawyer" also retains the protection of the attorney-client privilege.
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ATTORNEY-CLIENT PRIVILEGE AND THE 'COMPLETE LAWYER'
In a recent decision, Pritchard v. Erie County, No. 06-2459-op (Jan. 3, 2007), the 2nd U.S. Circuit Court of Appeals held that a client does not forfeit the protection of the attorney-client privilege merely because that client has the good sense or good fortune to have hired a lawyer who is able not only to tell the client what the law is, but can also make recommendations and advise the client on how the client should proceed given the status of the law.
Pritchard is a class action filed on behalf of people who had been arrested and subjected to strip searches by the defendant, Erie County, N.Y. During discovery, the county, on the basis of the attorney-client privilege, withheld from production a series of e-mails between county officials and a county attorney. In the e-mails, the county attorney, who herself had no policy-making authority, did more than tell county officials what the law was; she, after explaining the status of the law, also "assessed the County's current search policy, recommended alternative policies, and monitored the implementation of these policy changes."
The trial court held that the attorney-client privilege did not protect the e-mails from disclosure because the county attorney, by proposing policy changes and then monitoring the implementation of those policy changes, went "beyond rendering legal analysis." In essence, the trial court concluded that the attorney-client privilege did not apply because the county attorney was acting as a policy maker, not as a lawyer.
The 2nd Circuit reversed, holding that the county attorney was merely doing her job as a lawyer, and doing it well, when she went beyond a mere rendering of legal analysis, and that the client did not lose the protection of the attorney-client privilege because she did so. The 2nd Circuit acknowledged, of course, that the privilege applies only to communications between client and counsel "made for the purpose of obtaining or providing legal assistance." And clearly, the attorney-client privilege would not apply if, for instance, county officials sought media relations advice from someone who happened to be a lawyer. In Pritchard though, the 2nd Circuit, upon an in camera review of the documents, held that the "predominant purpose" of the e-mails at issue was legal in nature. The fact that the e-mails included policy recommendations, assessments and oversight did not transform the county attorney into something other than a lawyer; nor did that fact render the attorney-client privilege inapplicable. Instead, the county attorney was merely doing what her client had a right to expect her to do as a "complete lawyer."
I think you've previously reported on a bill proposed by the RPPTL Section, based largely upon a Florida Bar Article by Jack Falk. Jack expresses concern that the courts might allow discovery of matters relating to advising the fiduciary (or at least there would be a dispute on the issue), but advocates that fiduciary advice should be privileged. HB-1341 (2006) and SB-2190 (2006) died in committee in May of 2006. I understand the section will be submitting another bill. The proposal provides for a "Fiduciary Lawyer-Client Privelege" by creating section 90.5021. This would apply to a lawyer's advice to a personal representative, trustee or guardian. I think it would give lawyers more confidence in advising fiduciaries, especially in contested administrations. Until such a bill is passed, I think all of the experts are advising that a separate office file be created for advice to the fiduciary, segregated from the main administration file. Segregation would also apply to billing records, which could be discoverable. The hope is that the administration file would be discoverable and the fiduciary advice file would not.
Hi Jeff -
Yes, I have previously reported on the RPPTL Section's efforts to codify a "Fiduciary Lawyer-Client Privilege." (See my last blog post on the Section's meeting.) However, even assuming this protection is in place, I don't think it will do you much good if the other side claims the advice you gave your trustee/PR client regarding proper procedures to implement in order to best apply the law you advised him on is not "legal advice," and thus outside of the SCOPE of the statutory privilege. I thought the linked-to article and case were especially interesting (and especially relevant to T&E lawyers) because the focus was on the SCOPE of privileged communications.
Determining the scope of this privilege is too fact specific to codify, so I think it's helpful to have good law on your side when a disgruntled beneficiary tries to make you turn over your files arguing that attorney-client communications having to do with applying the law to a specific set of facts falls outside the SCOPE of privileged "legal advice" type communications.
Regards. Juan.