If you're an estate planner, it's only a matter of time until someone asks you to turn over a deceased client's estate planning file. Don't automatically say "yes," you'd be surprised (horrified!) by the ethical traps lurking in this seemingly simple request (if you want to make sure you don't get sued for getting this wrong, read Florida Bar Advisory Opinion 10-3, which I've previously written about here).
And if you're a probate lawyer, sooner or later you're going to find yourself representing a personal representative, trustee or guardian on the receiving end of discovery requests demanding privileged communications (in which case you'll want to cite F.S. 90.5021, the evidentiary privilege rule specifically designed for fiduciaries, which I've previously written about here).
So what's the link between the ethical duty to keep client information confidential and the evidentiary rule shielding this information from disclosure? Think in camera (Latin for: "in a chamber") inspection. If there's a dispute, a court's going to have to decide which documents get turned over and which don't. In order to preserve the confidentiality of information claimed to be privileged during the process of determining the propriety of those claims, there's no other logical alternative than for the court to independently review the material in camera.
Can a court say NO to the in-camera review process? NO
Patrowicz v. Wolff, --- So.3d ----, 2013 WL 1352488 (Fla. 2d DCA April 05, 2013)
In this case the same lawyer was apparently estate planner for the decedent and counsel for the personal representative of his estate (which is common). So when the plaintiff subpoenaed his records, it was in his capacity as a non-party estate planner, not probate counsel. Why does this matter? Because it means the law governing if or when these records get turned over are the ethics rules dissected in Florida Bar Advisory Opinion 10-3, not evidentiary rule F.S. 90.5021. This distinction matters.
In any event, when the subpoena was challenged, no matter what law governs the ultimate outcome the path for getting there is the same: court must conduct an in camera review. So can a probate judge simply skip this step? NO, so sayeth the 2d DCA:
Sarah R. Patrowicz, as Personal Representative of the Estate of Joseph H. Winner, petitions this court for a writ of certiorari quashing a discovery order compelling the production of documents allegedly subject to the attorney-client privilege. Because the trial court departed from the essential requirements of the law by ordering the production of allegedly privileged documents without first conducting an in camera inspection to determine whether the privilege applies, we grant the petition and quash the order.
. . .
“A trial court's order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is reviewable by certiorari.” Bennett v. Berges, 84 So.3d 373, 374–75 (Fla. 4th DCA 2012). A party claiming that documents sought by an opposing party are protected by the attorney-client privilege is entitled to have those documents reviewed in camera by the trial court prior to their disclosure. Id. at 375. This is equally true where the subpoena on its face requests communications between attorney and client. See Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002). The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law. See Snyder v. Value Rent–A–Car, 736 So.2d 780, 782 (Fla. 4th DCA 1999).
. . .
[T]he reason we must quash the order is that the trial court ordered production of the documents without first reviewing them and determining whether the attorney-client privilege applied. Not only did Linde specify that his objection was based on the attorney-client privilege, but the subpoena on its face explicitly requested communications between an attorney and his client. Consequently, the trial court was required to conduct an in camera inspection of the documents prior to ordering their disclosure. We therefore quash the order compelling the production of the documents and remand the case for further proceedings.
OK, so if a court can't say no to the in-camera review process, can you? NO
Bennett v. Berges, --- So.3d ----, 2012 WL 832730 (Fla. 4th DCA March 14, 2012)
In probate litigation the same person is your judge and jury; these are all bench trials. So if you're worried something you told your lawyer is going to prejudice you in the eyes of your judge/fact-finder, having this same judge conduct the in camera review of your files isn't going to help much, the damage is done. Assuming this scenario, then maybe you're going to really want to block the in-camera review process. That may be so, but don't count on an appellate court coming to your rescue. If your judge says turn over the documents, that's it, you're done. So sayeth the 4th DCA:
Here, the trial court properly ordered an in camera review of the relevant documents claimed to be privileged. The order does not compel Petitioners to produce the documents to Respondents. After an in camera inspection, the trial court may determine that the documents are privileged and uphold Petitioners' objection to the discovery request. Accordingly, because the order requires a party to submit allegedly protected materials only for an in camera inspection, and the trial court may never require disclosure of the documents to the opposing party, we hold that the petition is premature. See Cape Canaveral, 917 So.2d at 340 (holding certiorari review was premature because no irreparable harm had been demonstrated where the order under review merely required documents to be produced for an in camera inspection and no discovery had yet been ordered); Gaton v. Health Coal., Inc., 774 So.2d 59 (Fla. 3d DCA 2000) (certiorari review of an order requiring submission of documents allegedly protected by the trade secret privilege to the courts for an in camera inspection was premature because no production had been ordered to the opposing party). But see Cebrian By & Through Cebrian v. Klein, 614 So.2d 1209 (Fla. 4th DCA 1993) (granting a writ of certiorari and quashing an order requiring in camera inspection of certain HRS investigation reports because the shield law found in section 415.52(2), Florida Statutes (1990), created a privilege for such reports; thus, an in camera inspection was not necessary to determine whether the material was or was not protected).
Whether the trial court has misapprehended the scope of the privilege is a question we need not decide because to date, no discovery has been ordered. Accordingly, the petition is denied.