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The histrionics we see on television are almost never allowed in a real courtroom. If something truly appalling is going to happen, it’s going to happen outside of the courtroom. Prime example: toxic e-mail feuds.

Sooner or later we all run into opposing counsel who try to provoke us into some kind of angry e-mail exchange. My policy: do NOT engage.

These sorts of soul crushing e-mail feuds do nothing to help the clients, move the focus of the case away from the substance of the matter (where it should be) to the lawyers (where it shouldn’t be), and are ultimately demeaning as well as psychologically damaging for all concerned.

Case in point: The e-mail feud between two Florida litigators that resulted in sanctions for both sides. The insults they exchanged were summarized by the ABA Journal:

  • From Mooney to Mitchell, written after an accusation that he couldn’t handle the pressures of litigation: Mooney said he was handling more than 200 cases, “many of which were more important/significant than these little Mag[nuson] Moss [warranty] claims that are handled by bottom feeding/scum sucking/loser lawyers like yourself.”
  • From Mitchell: Mooney displays symptoms of a disability marked by “closely spaced eyes, dull blank stare, bulbous head, lying.”
  • From Mooney: Mitchell should look in the mirror to see signs of a disability. “Then check your children (if they are even yours. … Better check the garbage man that comes by your trailer to make sure they don’t look like him).”
  • From Mitchell, after learning Mooney’s son suffers from a birth defect: “While I am sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces.”

If you’re dealing with opposing counsel that just doesn’t get it, you may want to send him or her a copy of the Florida Bar Complaints filed against the lawyers in this case [click here, here], and note that toxic e-mails can actually get them sanctioned, as noted in the concluding paragraph of both Florida Bar Complaints:

By reason of the foregoing, the Respondent has violated the following Rules Regulating The Florida Bar: Rule 3-4.3 (commission of any act that is unlawful or contrary to honesty and justice); and Rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic).

On December 17, 2010, President Obama signed H.R. 4853, the Middle Class Tax Relief Act of 2010, into law. This legislation extends the Bush-era Tax Cuts and it brings back the federal estate tax for two years at tax rate of 35% and with an exemption of $5 million.  It makes a number of other dramatic changes to wealth transfer taxes. Hani Sarji, author of Estate of Confusion, has created two excellent charts summarize these changes. For those of you looking for a quick reference source, these charts are worth holding on to.

In this blog post Mr. Sarji provides the following chart comparing the Estate, Gift and GST Tax rules in 2010 with those applicable in 2011.

In this blog post Mr. Sarji provides the following chart comparing the gift tax rules for 2010 with the new gift tax rules applicable in 2011 and 2012.

Rossen v. Bilchik, — So.3d —-, 2010 WL 4628288 (Fla. 4th DCA Nov 17, 2010)

Under Florida law, the custodian of a will is required to deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. And if you don’t deposit the will, F.S. 732.901(2) says a court can order you to do it and make you pay the related attorneys fees and costs.

But two wrongs don’t make a right. If you want to get a court order compelling someone to deposit a will, you have to give that person notice of the hearing and an opportunity to be heard. In the absence of that minimal due process, you order isn’t valid. So says the 4th DCA:

These consolidated appeals arose out of a disagreement between two sisters after their father’s death. Appellee Janice Bilchik filed a petition against appellant Betsy Ann Rossen under section 732.901, Florida Statutes (2008); subsection (2) of that statute provides:

Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will as provided in subsection (1) [requiring deposit of a will “with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead”]. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.

Bilchik filed the petition with the clerk on January 11, 2008. Without a hearing and without any proof that the petition had been received by Rossen, on January 15, 2008, a circuit judge entered an order that was tantamount to a final judgment granting full relief under section 732.901 by requiring Rossen to produce the will and awarding $2,500 in attorney’s fees against her. The entry of this order without due process generated a plethora of motions, hearings, and contempt orders.

Rossen appeared in the lawsuit, sometimes with an attorney and sometimes without. She . . . timely objected to the entry of the January 15 order entered without notice and without a hearing. She was entitled to have the order set aside under Florida Rule of Civil Procedure 1.540(b).

Lorenzo v. Medina, — So.3d —-, 2010 WL 4483470 (Fla. 3d DCA Nov 10, 2010)

At common law, lapse occurs when the beneficiary or the “devisee” under a will predeceases the testator, invalidating the gift. The gift would instead revert to the residuary estate or be granted under the law of intestate succession. Florida enacted F.S. 732.603, an anti-lapse statute, to ameliorate the potentially harsh effects of this common law rule. Rather than lapsing, gifts covered by the statute go to a pre-deceased beneficiary’s descendants.

Florida’s anti-lapse statute does not fix all lapsed gifts, only those made to immediate family members. Gifts to neighbors, friends, and in-laws do not benefit from this statute.

At issue in the linked-to case was a gift to the testatrix’s sister-in-law, Juana R. Medina, who had predeceased the testatrix. The trial court ruled the sister-in-law’s gift was saved by F.S. 732.603, thus resulting in her 50% share of the estate going to her children, the testatrix’s niece and nephew. This may have seemed like an equitable outcome, but it failed as a matter of law. Gifts to in-laws are NOT saved by Florida’s anti-lapse statute.

As a matter of common law, when a will provides for a bequest to a person who predeceases the testator, the gift lapses. Tubbs v. Teeple, 388 So.2d 239, 239 (Fla. 2d DCA 1980) (“When a legatee under a will predeceases the benefactor, the gift lapses.”). The potentially harsh effects of this common law rule are ameliorated to an extent by the operation of statute. When the predeceased devisee is a descendant of the testator’s grandparents, section 732.603 will “save” the lapsed gift by creating a substitute gift in the devisee’s descendants. § 732.603(1). Because section 732.603 is in derogation of the common law, we must strictly construe its provisions. Drafts v. Drafts, 114 So.2d 473, 476 (Fla. 1st DCA 1959) (“The antilapse statute being directly in derogation of … the common law, the statute must be strictly construed.”).

*****

Pursuant to the common law rule outlined above, the bequest lapsed. And because Juana R. Medina is not a descendant of the Testator’s grandparents, the niece and nephew cannot invoke the operation of section 732.603(1) to “save” the bequest and provide them with a substitute gift. Thus, we conclude that the niece and nephew are not entitled to the Testator’s lapsed bequest. Accordingly, we reverse the order under review.

 

Johnson v. Amritt, — So.3d —-, 2010 WL 4861745 (Fla. 3d DCA Dec 01, 2010)

In contested trust and estate proceedings the fiduciary in charge of the estate (i.e., the trustee, personal representative or guardian) hires the lawyer, but the estate’s beneficiaries paythose fees (the fiduciary’s attorney’s fees are paid from the estate).

Because the party paying the fiduciary’s legal fees did not participate in negotiating the fee arrangement, there’s a built in tension every time a court is asked to rule on their reasonableness. Recognizing this tension, Florida’s Trust Code (F.S. 736.1007) and Probate Code (F.S. 733.6171) both contain specific guidelines to aid trial judges in setting attorney fees.

One of the primary social values promoted by these statutes is assuring the public that judges are making fee decisions in an objective and uniform manner. Here’s how the Florida Supreme Court articulated this crucially important point in Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985):

[G]reat concern has been focused on a perceived lack of objectivity and uniformity in court-determined reasonable attorney fees. Some time ago, this Court recognized the impact of attorneys’ fees on the credibility of the court system and the legal profession when we stated:

There is but little analogy between the elements that control the determination of a lawyer’s fee and those which determine the compensation of skilled craftsmen in other fields. Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that. It brings the court into disrepute and destroys its power to perform adequately the function of its creation.

Baruch v. Giblin, 122 Fla. 59, 63, 164 So. 831, 833 (1935).

Although the amount of an attorney fee award must be determined on the facts of each case, we believe that it is incumbent upon this Court to articulate specific guidelines to aid trial judges in the setting of attorney fees.

The only way a trial judge can assure parties involved in a contested trust or estate proceeding that the amount of attorney’s fees they’re paying was determined in an objective and uniform manner is to enter orders containing detailed findings as to [1] the hourly rate, [2] the number of hours reasonably expended, and [3] the appropriateness of reduction or enhancement factors. If a fee order doesn’t contain these findings it is per se erroneous and subject to reversal.

In other words, even if the trial judge’s fee order reaches the right conclusion, if it doesn’t explain in detail how the judge arrived at his conclusion (thereby giving all interested parties confidence in the ruling’s fairness), the order is per se wrong. That’s what happened in the linked-to case above, and why the trial judge’s fee order was reversed:

We review the trial court’s order “approving and authorizing the payment of attorney’s fees” to the former emergency temporary guardian’s counsel. After a thorough review of the record, we hold that the trial court did not make the requisite findings for an award of attorney’s fees. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151-52 (Fla.1985). “An order awarding attorneys’ fees is ‘fundamentally erroneous on its face’ when the trial court fails ‘to make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as required by [Rowe, 472 So.2d at 1151].” Parton v. Palomino Lakes Prop. Owners Ass’n, Inc., 928 So.2d 449, 453 (Fla. 2d DCA 2006) (quoting Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 891 So.2d 1063, 1065 (Fla. 2d DCA 2004)). We reverse the order on appeal and remand with instructions for the trial court to make the requisite findings set forth in Rowe and its progeny and state the basis for awarding any such attorney’s fees.

 

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Probate courts can get reversed for refusing to appoint as personal representative (PR) the person with preference under F.S. 733.301. Don’t get me wrong, probate courts do have the inherent authority to override this statute, but only if there are specific findings of fact – developed in the context of a formal evidentiary hearing – that the statutorily preferred person lacks the “qualities and characteristics” necessary to serve as PR [click here].

Case Study

Stalley v. Williford, — So.3d —-, 2010 WL 4967982 (Fla. 2 Dist. Dec 08, 2010)

In the linked-to case the probate court attempted to exercise its inherent authority to override the PR-preference statute, but failed to support its order with evidence suggesting the statutorily preferred person was unfit to serve as PR. No evidence of unfitness = reversal. Here’s why:

Pamela Lynn Williford died in 2008, leaving two minor children as the sole heirs of her intestate estate. Douglas Stalley was tendered by the children as a suitable personal representative, but the circuit court appointed Williford’s father, Harrison Williford, instead. This appointment was contrary to the statute prescribing the order of preference for appointment of a personal representative in this case. Accordingly, we reverse.

The statute, section 733.301, Florida Statutes (2008), sets forth the following order of preference in appointment of a personal representative of an intestate estate:

1. The surviving spouse.

2. The person selected by a majority in interest of the heirs.

3. The heir nearest in degree.

§ 733.301(1)(b).

There was no surviving spouse in this case. Douglas Stalley was the person selected by both heirs, acting through the guardians of their property as authorized under section 733.301(2). Thus, Stalley should have been appointed unless otherwise disqualified. Cf. §§ 733.302, 303 (providing qualifications for personal representative); In re Estate of Snyder, 333 So.2d 519, 521 (Fla. 2d DCA 1976) (holding, under earlier version of statute, that court did not abuse its discretion in declining to appoint person with statutory preference where he lacked “the qualities and characteristics necessary to properly perform the duties”).

There was a complete absence of evidence to suggest that Stalley was unfit to serve. Thus, the court abused its discretion by appointing the decedent’s father rather than the representative chosen by the heirs.

Deathbed marriages can be the ultimate weapon for those looking to prey on the elderly. In Florida you can marry someone minutes before their death and automatically vest into the right to live in the decedent’s homestead residence rent-free for the rest of your life, a 50%-100% share of the decedent’s estate under Florida’s intestacy statute or pretermitted spouse statute, or at the very least a 30% share of the decedent’s estate under Florida’s elective share statute.

What may come as a shock to most lawyers is that under Florida common law heirs are stopped cold on a per se basis from challenging deathbed marriages — no matter how ugly the circumstances may be. This, by the way, is the traditional rule applicable in most U.S. jurisdictions (see How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America).

Efforts have been under way since 2008 aimed at closing this loophole [click here], culminating in 2010 with the creation of F.S. 732.805. This statute is a dramatic change from existing Florida law. For the first time in state history a decedent’s heirs will have legal standing to challenge a deathbed marriage on the grounds of fraud, duress or undue influence.

Florida probate lawyers would do well to familiarize themselves with F.S. 732.805; and for those of you looking for a little help on that front, you’ll want to check out this 2008 Bar-committee White Paper and the 2010 Florida Senate Bill Analysis covering the new statute. Here’s an excerpt from the Senate Bill Analysis:

The bill creates s. 732.805, F.S., which provides that a surviving spouse found to have procured a marriage to the decedent by fraud, duress, or undue influence is not entitled to certain rights or benefits that inure solely by virtue of the marriage or the person’s status as surviving spouse, unless the marriage is subsequently ratified. Specifically, the surviving spouse is not entitled to the following:

[1]  Any rights or benefits under the Florida Probate Code, including entitlement to elective share or family allowance; preference in appointment as personal representative; inheritance by intestacy, homestead, or exempt property; or inheritance as a pretermitted spouse.

[2]  Any rights or benefits under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name in the bond, life insurance policy, or other contractual arrangement.

[3]  Any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name in the document.

[4]  Any immunity from the presumption of undue influence that a surviving spouse may have under state law.

If the surviving spouse is found to have procured the marriage by fraud, duress, or undue influence, then any of the above rights or benefits that would have passed solely to the surviving spouse by virtue of the marriage shall pass as if the spouse has predeceased the decedent.

Any interested person may bring a challenge to a surviving spouse’s rights as a defense, objection, or cause of action. The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence. If the surviving spouse raises ratification as a defense, the spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both parties. A challenge made under this section must be commenced within four years after the decedent’s death, unless the claim is barred sooner by adjudication, estoppels, or a provision of the Florida Probate Code or Florida Probate Rules.

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Section 731.110 of Florida’s Probate Code allows any person who is apprehensive that an estate will be administered or that a will may be admitted to probate without that person’s knowledge to file a caveat with the court. “Caveat” is a Latin term that means “warning or admonition”. In the Florida probate context it refers to a mechanism that compels a local court to give you notice of any petition filed to administer a decedent’s estate (and as I wrote here, it’s reversible error if a probate judge ignores this obligation).

Especially if you’re anticipating a possible will-challenge, caveats are critically important defensive tools: they allow you to block an opposing party from getting him or herself appointed personal representative (“PR”) under an invalid will in advance of the litigation. The side that gets appoint PR has significant advantages in any probate case, and once a PR’s appointed, the court can’t just boot him out [see here, here, here].

Legislative fix:

Probate lawyers often try to file pre-death caveats, but some courts refuse to accept the filings. Neither the Florida Probate Rules nor the Florida Probate Code specifically prohibits the filing of a caveat if the person is not yet deceased; however, both the Code and the rules reference the content of a caveat in relation to a “decedent” and his or her “estate.”

Effective this year, F.S. 731.110 was amended to fix this problem and also generally improve the way caveats are administered. Here’s how the legislative fix is summarized in this Legislative White Paper:

EFFECT OF PROPOSED CHANGE GENERALLY:

The proposed change would permit the filing of a pre-death caveat by an interested person. So as to limit the burden placed upon the Clerk of Court to monitor pre-death caveats, the proposed change would provide that such caveats shall expire two (2) years after filing. The amendment would also exclude the filing of pre-death caveats by creditors of the decedent as the committee did not feel the appointment of a personal representative or the admittance of a potentially invalid will substantially affected the rights of creditors in an estate. The right of a creditor to file a post death caveat is not affected by this amendment. Finally, the amendment would also eliminate the inconsistencies between F.S. §731.110 and Fla. Prob. R. 5.260, bringing the statute in line with the procedural requirements of the rule.

ANALYSIS:

One of the primary purposes of F. S. §731.110 is to permit an interested personto require notice be served upon them and that they be permitted an opportunity to object to a petition for administration before a personal representative is appointed or the decedent’s purported last will and testament is admitted to probate. If the interested person is denied information regarding the death of the decedent, the purpose of the statute is defeated if the interested person is not permitted to file a caveat until after the death of the decedent. The clarification that pre-death caveats are permitted to be filed by interested persons assures that wrongdoers may not isolate individuals from their family and then obtain the appointment as personal representative or have a potentially invalid will admitted to probate without the interested person having any ability to require prior notice. The amendment also resolves the present inconsistency between the circuits in the interpretation of the present statute by the clerks of court regarding the acceptance of pre-death caveats. Finally, the amendment will limit the impact on the clerks of court by providing that the caveat will expire two years after filing. It would be the responsibility of the caveator to docket the pre-death caveat for re-filing or renewal at the termination of the two year period. The amendment also eliminates the inconsistency in procedural aspects between the statute and relevant rule and brings the statute in line with the rule.

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Piloto v. Lauria, — So.3d —-, 2010 WL 4103017 (Fla. 4th DCA Oct 20, 2010)

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. So it shouldn’t come as a surprise to anyone that every day more and more Florida estates are impacted by multi-national issues.

What’s a probate lawyer to do?

Focus on a couple of guiding principles that only apply to multinational estates; then work the case like you would any other ancillary estate under Ch. 734 of Florida’s Probate Code. In Nahar v. Nahar, 656 So.2d 225 (Fla. 3d DCA 1995), the court identified the two guiding principles that apply to any Florida court attempting to reconcile the separate arrangements for ownership, taxation, and succession governing multinational estates.

  1. “Administration of an estate is governed by the law of the decedent’s domicile”; and
  2. “[w]here a party has had notice and opportunity to be heard and the foreign court has satisfied Florida’s jurisdictional and due process requirements[,] their orders will be entitled to comity.” Id. at 229-30.

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:

The decedent was survived by his wife and four adult children from a prior marriage. He died intestate, that is, without a will. The probate of his estate occurred in his domicile of Venezuela. A Venezuelan court entered a judgment finding that his wife and children were the sole heirs of his estate. The face of the judgment, however, makes no further findings and does not appoint a personal representative for the estate.

Key take-away points from this summary:

  1. Decedent’s domicile: Venezuela.
  2. Decedent died intestate, i.e., without a will.
  3. Limited scope of Venezuelan probate judgment: the Venezuelan probate judgment did NOT appointment a personal representative (PR) for the decedent’s estate.

Both the probate judge and the 4th DCA agreed the Venezuelan probate judgment did NOT appointment a personal representative (PR) for the decedent’s estate. As such, the key legal issue here in Florida was who should be appointed PR.

F.S. 734.102 governs the appointment of PR’s for ancillary estates. According to that statute, if the decedent dies intestate you’re supposed to apply the rules generally applicable in Florida for the appointment of PRs, which are found in F.S. 733.301. Under that statute the surviving widow is first in line to be PR, and that’s how the Florida probate court ruled. Right answer!, says the 4th DCA. Here’s why:

[The] first four sentences [of subsection (1) of F.S. 734.102] all address a situation in which the decedent dies testate, that is, with a will. Subsection (1)’s fifth sentence . . . is the only sentence which addresses what occurs “[i]f the decedent dies intestate.” In that situation, “the order of preference for appointment of a personal representative as prescribed in this code shall apply.” As the circuit court found, that language directs us to section 733.301(1)(b), Florida Statutes (2008), which provides that, in granting letters of administration in intestate estates, the order of preference is “[t]he surviving spouse” followed by “[t]he person selected by a majority in interest of the heirs.” Such an interpretation does not conflict with [subsection (4) of F.S. 734.102]’s insistence that “[a]ll proceedings for appointment and administration of an estate shall be as similar to those in original administrations as possible.” Here, the original administration did not involve the appointment of any personal representative, so appointing the wife as the ancillary personal representative does not conflict with the original administration.

 

As a practicing lawyer, one of the best risk-management tools available to you are the ethics rules. Not because you need someone to tell you it’s a bad idea to lie, steal or cheat; but because you need someone to point out the pitfalls that are NOT self evident. As former Secretary of Defense Donald Rumsfeld famously put it, it’s the “unknown, unknowns” you need to worry about.

Here’s how Prof. Michael Schutt makes this same point in Redeeming Law (which is excellent by the way):

When I practiced law, I paid attention to the ethical rules only when I was involved in a case involving disqualification for conflict of interest.  . . .  The problem wasn’t that I was dishonest but that I had way too much confidence in my own honesty.  . . .  I believed my own high standards as a Christian were well above the rules of ethics — those rules were for those who wanted to do the bare minimum. I had a higher standard.  . . .  This is a recipe for disaster . . .  Codes of legal ethics are the wisdom of those who have gone before, helping us define the standard. Without the rules of ethics, we don’t even know what the issues are.

Advisory Opinion 10-3:

On February 1, 2011 the Florida Bar’s Professional Ethics Committee published Advisory Opinion 10-3. This advisory opinion focuses on an issue that comes up all the time for estate planning lawyers: what to do when your clients die and someone asks for a copy of your file. The answer might surprise you. For example, when the deceased client’s personal representative calls you up and asks for a copy of your file, do you automatically say “yes.” Wrong answer! Assume the same scenario but the person calling is one of the decedent’s heirs, not the personal representative. Do you automatically say “no.” Again, wrong answer!

When to disclose client confidences is a question no lawyer should take lightly. Don’t trust your “gut” to make the right call. The answer that seems intuitively right to you may be a disaster waiting to happen. Consider these hypotheticals:

[1] Is the Personal Representative automatically entitled to disclosure of all of your estate planning client’s secrets? NO

Here’s how the advisory opinion addressed this scenario:

The exception to [Rule 4-1.6] most likely to apply in such requests is set forth in subdivision (c)(1): “to serve the client’s interest unless it is information the client specifically requires not to be disclosed.” Thus, if a personal representative asks for confidential information relating to a decedent’s estate plan and the decedent’s lawyer determines that disclosure of the information would aid in the proper distribution of the decedent’s estate according to the decedent’s wishes, the lawyer may properly disclose the information to the personal representative, unless the decedent specifically required that the information be kept confidential. For example, in Florida Ethics Opinion 72-40, a client instructed the inquiring lawyer who was hired to assist the client with estate planning to “forget” that the client had a “large amount of bearer bonds, registered jointly with his wife.” The opinion concludes that the lawyer may not disclose the existence of these assets to the bank which was to be the sole executor of the client’s estate unless the client gave consent to the disclosure or unless ordered to do so by a court, whether the inquiry was made before or after the client’s death. The opinion states that “the duty to preserve a client’s confidences survives his death. . . .” Thus, a lawyer must undertake the appropriate analysis under the confidentiality rule, even if it is the personal representative who requests information of the decedent from a lawyer who assisted in the decedent’s estate planning and the information sought relates specifically to that estate plan.

[2] Can you disclose an estate planning client’s confidential information to his heirs? MAYBE

Here’s how the proposed advisory opinion addressed this scenario:

[I]f a beneficiary or heir-at-law asks for specific information and the decedent’s lawyer determines that voluntary disclosure of the information would serve the decedent’s interests, the lawyer may disclose that specific information. For example, a lawyer might provide a copy of the decedent’s will or disclose information relating to the execution of a will to a beneficiary or heir-at-law if the lawyer reasonably believes that disclosure of the information would forestall litigation by the beneficiary or heir-at-law, thereby conserving assets of the estate in the exercise of the lawyer’s professional discretion. However, information that the decedent specifically required the lawyer not to disclose to others may not be disclosed by the lawyer to the beneficiary or heir-at-law, regardless of whether the information is privileged. For example, a deceased client may have specifically instructed the lawyer not to disclose information to anyone about an illegitimate child or an extra-marital relationship.

I find this second conclusion a bit troubling. In the absence of a subpoena, I don’t see myself voluntarily disclosing confidential information about a deceased client to anyone other than his personal representative. And I’m not the only one who feels this way. In a 2003 Florida Bar Journal Article entitled Post-death Confidentiality of Estate Planning Communications Between Attorney and Client, well-known trusts and estates attorney Barry F. Spivey concludes it would be an ethics violation to voluntarily disclose client confidences to an heir who hasn’t been appointed personal representative:

In Florida Bar Staff Opinion 20749 (March 9, 1998) [see Appendix 1], the question raised was whether a lawyer who had prepared a former will of a decedent (whose last will was prepared by another lawyer) could voluntarily (i.e., without subpoena) furnish a copy of the prior will to an attorney for a potential contestant of the last will. The opinion implies that no will contest had yet been filed, indicates that the confidentiality rule (4-1.6) applies to the facts of the request (citing the comment to the rule that states that the duty “continues after the client-lawyer relationship has terminated”), and notes that none of the exceptions to the rule applied to the facts (however, keep in mind that the preamble to the Florida Rules of Professional Conduct states specifically that the comments are intended only as guides to interpretation, and do not add obligations to the rules). Although it gives no specific instruction to the inquiring lawyer, the opinion must be read as concluding that voluntary disclosure of the prior will of a deceased client is prohibited by the duty of client confidentiality. This seems evident from a reading of Rule 4-1.6(a).

Mr. Spivey is rightly known as one of the smartest probate lawyers in Florida. He’s the kind of guy you hope you can call when you have an especially thorny issue to work through. And yet, what seemed “evident” in 2003 wasn’t so clear in 2010 to the drafters of Proposed Advisory Opinion 10-3. Which underscores my initial point: this stuff isn’t intuitive; you need to stop, read the ethics rules and related advisory opinions before you even have a chance of spotting the issues, let alone make the right call.