Florida Probate Blog

Vasallo v. Bean, 208 So.3d 188 (Fla. 3d DCA 2016) Plaintiffs in probate and trust litigation cases are frequently forced to spend considerable time and money compelling the decedent’s estate planning attorney to produce his or her file and to answer questions at depositions.  Sometimes the objections and motions for protective order come from the defendant.  This is common when the defendant, who is the alleged undue influencer, is also the decedent’s personal representative and attempts to assert the decedent’s lawyer-client privilege to conceal his or her involvement with the estate planning. As often as not, however, the objections and motions come from the estate planning attorney, who is always a fact witness in litigation cases involving challenges to wills and trusts.  Sometimes the attorney simply wants a court order compelling him or her to turn over the file as a precautionary measure to avoid any possible violation of the […]

Death, Lawyers, and Loose Lips:  Third District Court of Appeals Clarifies Distinction Between Ethical duty of Confidentiality from Evidentiary Privilege The attorney client privilege dates back to the English Common Law of the late sixteenth century making it the first privilege the law recognized for confidential communication.  For example, see Dennis v. Codrington, 21 Eng.Rep. 53 (1580) (finding “A counselor not to be examined of any matter, wherein he hath been of counsel”).  Thus, it is generally accepted by Florida probate lawyers that the ethical rule of attorney-client confidentiality limits disclosure of information acquired during the scope of the representation.  The only exception is where the client consents to the disclosure.  Rule 4-1.6(a) of the Florida Rules of Professional Conduct articulates the prohibition of disclosure of confidential information: “A lawyer must not reveal information relating to representation of a client…unless the client gives informed consent.”    The sanctity of the […]

Fourth District Court of Appeals Issues Order Protecting Documents of Trustee’s Attorneys from Discovery. Generally speaking, when any person hires an attorney, including the trustee of a trust, the written and verbal communications are privileged and confidential. However, litigation frequently tests the limits to this rule of non-disclosure. One of the most formidable weapons used by litigators to crack the seal on the confidentiality is to request documents relating to the communications in the process of discovery. Often, a party will issue a limited waiver of the attorney-client privilege and this waiver is then used (or abused depending on your perspective) to wedge in between the privilege and the forced disclosure of protected documents.