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Personal Representative Cannot Waive Privilege Between Guardian and Attorney

A 2016 federal case holds that the personal representative of an estate cannot waive the attorney-client privilege between a guardian and the guardian’s attorney.

The learned Professor Wigmore, arguably our nation’s foremost legal authority on evidence, has stated that the attorney-client privilege, dating back to the 1600s, is the most ancient of the confidential communication privileges.  While the privilege’s origins are in the common law, it has since been codified at Section 90.502, Florida Statutes.  Over time, the law evolved to carve out an exception to the privilege—known as the fiduciary-duty exception—when the lawyer’s client was a fiduciary and the lawyer’s services were rendered for the primary benefit of some third party.

For instance in some circumstances, the fiduciary duty exception would permit beneficiaries of an estate to obtain otherwise privileged communications between a personal representative and the personal representative’s lawyer.  However, in 2011, the Florida legislature enacted Fla. Stat. § 90.5021, titled Fiduciary-lawyer client privilege.  This statute appears to infringe upon the aforementioned fiduciary-duty exception.

Specifically, the new law defines who qualifies as a fiduciary for the purposes of the statute and explains that privileged communications between a lawyer and a fiduciary client are protected to the same extent as they would be if the client was not a fiduciary.  Even more unambiguous is the statute’s clarification that only the person or entity acting as a fiduciary is considered a client of the lawyer.

The Bivins v. Rogers Decision on Waiver of the Attorney-Client Privilege

In Bivins v. Rogers, 2016 U.S. Dist. LEXIS 120892, the United States District Court for the Southern District of Florida held that Section 90.5021 eviscerates the fiduciary-duty exception to the attorney client privilege.  In Bivins, the plaintiff is the personal representative of his father’s estate.  The plaintiff’s father had been a ward prior to his death and Rogers was one of several guardians appointed to exercise the father’s rights.  In the course of discharging his duties as guardian, Rogers was himself represented by a law firm and also hired several professionals to execute certain functions within the guardianship.

After the father died, the plaintiff—acting in his capacity as personal representative of his father’s estate—sued Rogers and several others involved in the guardianship, including Rogers’ attorneys and Rogers’ accountant.  The Southern District’s recent opinion in Bivins involves a discovery dispute in which the plaintiff sought production of communications between Rogers and his attorneys and accountants.

Can A Personal Representative Waive Privilege Between A Guardian And Attorney?

In its analysis, the Bivins court noted that prior to the enactment of Section 90.5021, the fiduciary-duty exception likely would have allowed the plaintiff-personal representative to stand in the shoes of the deceased ward and waive any privilege that might have otherwise prevented disclosure of communications between the guardian and his attorneys or accountants.  This is because the services rendered by the guardian—and by extension his attorneys and accountants—were primarily for the ward’s benefit.  The Bivins court aptly noted that its charge was to determine whether Section 90.2051 now precludes someone other than a client from waiving privilege when the client is a fiduciary.  The Bivins court held that it does.

The Bivins court’s decision is founded upon four underlying rulings of law.

First, the court confirmed that Section 90.5021 is good law in Florida despite being disavowed by the Florida Supreme Court.

The Court next explained that whether an attorney for a guardian owes a duty of care to a ward is distinct from and irrelevant in determining whether the non-client can waive privilege.

Third, the Bivins court found support from a recent Eleventh Circuit decision upholding the validity and applicability of Section 90.5021.

Finally, the court rejected a fairness argument advanced by the plaintiff on the basis that it is within the purview of the legislature, and not the judiciary to enact statutes.  Where the statute is unambiguous and its constitutionality is not challenged, the judiciary is without authority to ignore it.

The significance of this opinion cannot be overstated.  There has long been a question among members of the Florida bar as to the validity and applicability of Section 90.5021 in light of the Supreme Court’s refusal to adopt it.  The Bivins decision suggests that there is no longer any ambiguity about the Statute’s validity or breadth.  Whether a fiduciary’s attorney is rendering services for the benefit of the fiduciary or some third party is now irrelevant and the fiduciary-duty exception to the attorney – client privilege appears to be dead.

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