Personal Representative of Estate Cannot Waive Privilege Between Guardian & Attorney

Attorney-client privilege might be the most ancient of the confidential communication privileges. The privilege was codified in Florida at § 90.502. As time passed, the law evolved, creating an exception to privilege—the fiduciary-duty exception for when the client was a fiduciary and the lawyer’s services were for a third party. In 2011, however, Florida enacted § 90.5021, the fiduciary-lawyer client privilege, which appeared to infringe on the exception. This Section defines who qualifies as a fiduciary and further explains that the fiduciary-lawyer relationship would be protected just the same as a non-fiduciary relationship. Additionally, the Section explains that only the fiduciary is considered a client of the lawyer.

In Bivins v. Rogers, the plaintiff was the personal representative of his father’s estate. The defendant was one of several guardians appointed to exercise the father’s rights. After his father’s death, the plaintiff sued, seeking production of communication between the defendant and his attorneys and accountants. The question to the court was whether § 90.2051 precludes someone besides the client from waiving privilege when the client is a fiduciary. The court held that it does. This ultimately suggested that there was no ambiguity about the statute’s validity, making the fiduciary-duty exception irrelevant.

 See Jordan Hammer, Personal Representative Cannot Waive Privilege Between Guardian and Attorney, Florida Probate Lawyers, September 8, 2016.