The promise of confidentiality is at the heart of the lawyer-client relationship. Confidentiality is so important, it’s guaranteed under both our ethics rules (Rule 4-1.6) and our evidence code (F.S. 90.502).
This basic concept gets muddied in the trusts and estates context because much of the work estate planners do is ultimately intended for the benefit of third parties: a client’s heirs. Which means under certain circumstances estate planners can ethically — and voluntarily (i.e., without an authorizing court order) — disclose confidential information related to a deceased client’s estate plan to third parties (see here).
But what if litigation breaks out? In those cases our broad ethical duties of confidentiality give way to the narrower evidentiary privilege barring the disclosure of confidential lawyer-client communications. For estate planners, this means they’ll usually be forced to testify in a client’s will contest under the privilege exception found in subsection (4)(b) of F.S. 90.502, which provides as follows:
(4) There is no lawyer-client privilege under this section when . . . (b) A communication is relevant to an issue between parties who claim through the same deceased client.
Vasallo v. Bean, — So.3d —-, 2016 WL 6249157 (Fla. 3d DCA October 26, 2016):
This case involves a will contest in which four of the testator’s children were cut out of her will in favor of a fifth child. The trial court entered an order compelling the testator’s estate planning attorney “to answer counsels’ questions at deposition relating to the testator’s ‘reasons for disinheriting’ the other children.”
Was this a valid order? YES. This case is a classic example of when the evidentiary privilege exception applies.
We deny the petition for writ of certiorari, as petitioner has failed to establish that the trial court’s order constitutes a departure from the essential requirements of the law. See § 90.502(4)(b), Fla. Stat. (2016) (providing that “[t]here is no lawyer-client privilege under this section when: … A communication is relevant to an issue between parties who claim through the same deceased client.”) See also Law Revision Council Note (1976) to § 90.502(4)(b) (noting that “[w]hen multiple parties claim through the same decedent, as in a will contest or a challenge to testate or intestate succession, each party claims to best represent the interests of the deceased. To allow any or all parties to invoke the lawyer-client privilege prevents the swift resolution of the conflict and frustrates the public policy of expeditiously distributing estates in accordance with the testator’s wishes. This subsection simply disallows the privilege in favor of the policies stated above.”) (internal citation omitted); In re Estate of Marden, 355 So.2d 121, 127 (Fla. 3d DCA 1978) (holding that “[a]n attorney’s testimony about a Will drafted by him, after the death of the testator, is not ordinarily privileged.”)
Does this exception always apply in all estate litigation? NO (see here). But what if the trial court’s evidentiary order runs counter to an estate planner’s ethical duties of confidentiality? Evidence rule wins:
Petitioner’s assertion that the statements made to him by the testator are “confidential” under Rule 4–1.6, Rules Regulating the Florida Bar, is unavailing in this circumstance. See R. Regulating Fla. Bar 4–1.6, cmt. (“The attorney-client privilege [section 90.502] applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality [rule 4–1.6] applies in situations other than those where evidence is sought from the lawyer through compulsion of law”); Coffey–Garcia v. South Miami Hosp., Inc., 194 So.3d 533, 536 n. 1 (Fla. 3d DCA 2016) (observing that “[t]he distinction between the Ethics Code and Evidence Code is significant because 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.”)