4th & 2d DCA on "in camera" review of privileged documents in probate litigation
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.
When family members contest a DPOA's validity, it's usually a thinly-veiled inheritance dispute. This means these cases look and feel a lot like your standard probate case. They're not. One big difference: DPOA cases are NOT in rem proceedings; you need to personally serve opposing parties if you want your winning court order to mean anything. In the linked-to case above the contesting parties skipped this step, relying instead on the old probate standby: service by certified mail. This cut-to-the-chase approach may have worked with the trial judge, but it fell flat on appeal. Here's why:
If you want to get your hands on trust property, all you have to do is file a complaint and follow the Rules of Civil Procedure. Is that really too much to ask for? Apparently it was in this case. In the midst of a contested guardianship proceeding, and in response to nothing more than a motion filed by the guardian, the probate judge simply entered an ex parte order compelling the ward's trustee to hand over trust assets. Wrong answer! So saith the 4th DCA:
Fortunately for you and your prospective client, the 4th DCA recently published two opinions in separate cases explaining in plain English the very different evidentiary rules controlling TBE cases involving personal property vs. real property. This is your road map for successfully evaluating TBE cases.
actions (think trust contest). As I recently wrote
But what happens when Formal Notice is given to a caveator, and the caveator fails to timely file responses and affirmative defenses? Florida Probate Rule 5.040(a)(1) requires interested persons to serve written defenses “within 20 days after service of the notice.” Is the caveator barred from participating in the proceedings if the answer and affirmative defenses are untimely?
Case Study:
To say the decedent's daughters must have been crushed by the outcome of this case is probably putting it mildly. Why? Because according to them they weren't able to prove damages with reasonable certainty due to their stepmother's failure to turn over accounting documents she was supposed to produce during pre-trial discovery. In a lesson for all of us, this complaint got them nowhere. According to the 3d DCA counsel for the daughters needed to, as we used to say in the Marine Corps when things didn't go as planned: "
Rule 5.030(a), which provides as follows:
Litigator's Toolbox:
the related attorneys fees and costs.
These principles were very much in play in this case. Here's how the 4th DCA summarized the key facts and foreign probate judgment at issue:
Increased probate litigation threat: Florida's statutory fix:
I think most practicing lawyers have mixed feelings about questions from the bench. When the questions make clear the judge is leaning your way, you love 'em! When the opposite is true, you know it's going to be a bad day. Love 'em or hate 'em, questions from the bench are a fact of life and explicitly authorized under
luck, no matter how legitimate your objections may be. Here are the relevant portions of Rule 5.401:
In the linked-to case the winning side used a discovery-sanctions order to not only
This is the leg of the case that must have driven the plaintiff (and his attorney) crazy. With respect to the malpractice claim against the second estate planning attorney (Stuart), the court ruled there was no claim because this court interpreted the Joint Trust exactly opposite to the way the same instrument had been interpreted by the probate court. In the probate court the plaintiff had lost because the judge concluded the Joint Trust was NOT amendable after the first spouse's death. This time around the plaintiff lost - AGAIN - because the court concluded the Joint Trust WAS amendable after the first spouse's death, so the estate planning attorney (Stuart) did nothing wrong; ergo: malpractice action dismissed.
including probate litigation. I've reproduced his four principals below with my practice-specific comments:
According to the 4th DCA, the trial court incorrectly based its ruling on Florida statutes intended to guide funeral home operators and medical examiners: