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January 26, 2018 by admin

Evidence Code — Amendments — Chapter 2011-183, section 1, Laws of Florida, which created section 90.5021, Florida Statutes (Fiduciary lawyer-client privilege) of the Florida Evidence Code adopted, to the extent that provision of the Evidence Code is procedural

43
Fla. L. Weekly S31aTop of Form

Evidence
Code — Amendments — Chapter 2011-183, section 1, Laws of Florida, which
created section 90.5021, Florida Statutes (Fiduciary lawyer-client privilege)
of the Florida Evidence Code adopted, to the extent that provision of the
Evidence Code is procedural

IN RE: AMENDMENTS TO THE FLORIDA
EVIDENCE CODE – 2017 OUT-OF-CYCLE REPORT. Supreme Court of Florida. Case No.
SC17-1005. January 25, 2018. Original Proceedings — Florida Bar Code and Rules
of Evidence Committee. Counsel: Perry Michael Adair, Chair, and Gregory Paul
Borgognoni, Past Chair, Code and Rules of Evidence Committee, Coral Gables;
Jonathan Adam Galler, Chair, Florida Probate Rules Committee, Boca Raton,
Michael Travis Hayes, Past Co-Chair, and Jon Scuderi, Past Co-Chair, Florida
Probate Rules Committee, Naples; and Joshua E. Doyle, Executive Director,
Heather Savage Telfer, Staff Liaison, and Mikalla Andies Davis, Attorney
Liaison, The Florida Bar, Tallahassee, for Petitioner. Robert W. Goldman,
Naples; and George J. Taylor, Fort Lauderdale, Responding with Comments.

(PER CURIAM.) We have for
consideration the joint out-of-cycle report filed by the Florida Bar’s Probate
Rules Committee (FPR Committee) and the Code and Rules of Evidence Committee
(CRE Committee) (collectively Committees) asking this Court to reconsider its
2014 decision not to adopt, to the extent it is procedural, chapter 2011-183,
section 1, Laws of Florida, which created section 90.5021, Florida Statutes
(2017), (Fiduciary lawyer-client privilege) of the Florida Evidence Code. See
In re Amends. to Fla. Evidence Code,
144 So. 3d 536, 537 (Fla. 2014). We
have jurisdiction, see art. V, § 2(a), Fla. Const., and now adopt
chapter 2011-183, section 1, Laws of Florida, to the extent that provision of
the Evidence Code is procedural.

BACKGROUND

The Committees ask the Court to
adopt section 90.5021 of the Florida Evidence Code in order to resolve what
they refer to as a “conflict” between a 2011 amendment to Florida Probate Rule
5.240(b)(2) (Notice of Administration)1 and the Court’s 2014 decision not to
adopt section 90.5021. The CRE Committee voted 26-0 to ask the Court to resolve
the conflict between the 2014 decision and the probate rule. The FPR Committee
voted 30-0 to ask the Court to adopt section 90.5021. The Board of Governors of
The Florida Bar voted 41-0 to approve the Committees’ request. The Committees
published the request for comment prior to filing the report with the Court.
The Committees received two comments. One comment opposed the Court adopting
section 90.5021 and the other was not responsive to the request. The Court
published the Committees’ request for comment. Two comments were filed with the
Court. One comment urged the Court to adopt section 90.5021 and the other
opposed adoption.

COMMITTEES’
REQUEST

According to the report, the
conflict the Committees ask the Court to resolve arose as a result of the
timing of (1) the Court amending the probate rule in response to section 8 of
chapter 2011-183, Laws of Florida; and (2) the Court later declining to adopt
section 1 of chapter 2011-183, which created section 90.5021 of the Evidence
Code. In 2011, the Florida Legislature enacted chapter 2011-183, Laws of
Florida, which became effective June 21, 2011. See ch. 2011-183, § 14,
Laws of Fla. Section 1 of chapter 2011-183 created section 90.5021, Florida
Statutes, which eliminated what the Committees refer to as the common law
fiduciary exception to the attorney-client privilege, to the extent that
exception existed in Florida. Section 8 of chapter 2011-183, Laws of Florida,
amended section 733.212(2)(b), Florida Statutes (2010), to require that a
notice of estate administration include a statement that “the fiduciary
lawyer-client privilege in section 90.5021, Florida Statutes, applies with
respect to the personal representative and any attorney employed by the
personal representative.”

In response to the amendment to
section 733.212(2)(b), in 2011, the FPR Committee proposed a fast-track
out-of-cycle amendment to Florida Probate Rule 5.240(b)(2) that, consistent
with the statute, requires a notice of estate administration to include a
statement that “the fiduciary lawyer-client privilege in section 90.5021,
Florida Statutes, applies with respect to the personal representative and any
attorney employed by the personal representative.” The Court adopted, effective
September 28, 2011, the proposed probate rule amendment in In re Amendments
to the Florida Probate Rules,
73 So. 3d 205 (Fla. 2011). Then, in its 2013
regular-cycle report, the CRE Committee recommended that the Court adopt, to
the extent it was procedural, chapter 2011-183, section 1, Laws of Florida,
which created the section 90.5021 fiduciary lawyer-client privilege. However,
in the 2014 opinion addressing that recommendation, the Court declined to
follow the Committee’s recommendation to adopt the new provision of the Code. In
re Amends. to Fla. Evidence Code,
144 So. 3d at 537.

According to the Committees’ report,
the resulting conflict between the probate rule that requires notice of the
section 90.5021 fiduciary lawyer-client privilege and the Court’s refusal to
adopt that privilege to the extent it is procedural has led to confusion for
lawyers who represent fiduciaries, such as personal representatives, as well as
for circuit court judges. After considering the Committees’ report, the
comments submitted to the Committees and filed with the Court, and the
Committees’ response, we now adopt section 1 of chapter 2011-183, Laws of
Florida, as provided in the appendix to this opinion, to the extent it is
procedural. Our adoption of chapter 2011-183 is effective retroactively to June
21, 2011, the date it became law.2

It is so ordered. (LABARGA, C.J.,
and PARIENTE, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur. LEWIS, J.,
concurs in result.)

THE FILING OF A MOTION FOR REHEARING
SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

__________________

1See In re
Amends. to Fla. Probate Rules,

73 So. 3d 205 (Fla. 2011).

2See ch. 2011-183, § 14, Laws of Fla.

__________________

APPENDIX

Chapter 2011-183, § 1:

90.5021 Fiduciary lawyer-client
privilege. —

(1) For the purpose of this section,
a client acts as a fiduciary when serving as a personal representative or a
trustee as defined in ss. 731.201 and 736.0103, an administrator ad litem as
described in s. 733.308, a curator as described in s. 733.501, a guardian or
guardian ad litem as defined in s. 744.102, a conservator as defined in s.
710.102, or an attorney in fact as described in chapter 709.

(2) A communication between a lawyer
and a client acting as a fiduciary is privileged and protected from disclosure
under s. 90.502 to the same extent as if the client were not acting as a
fiduciary. In applying s. 90.502 to a communication under this section, only
the person or entity acting as a fiduciary is considered a client of the
lawyer.

(3) This section does not affect the
crime or fraud exception to the lawyer-client privilege provided in s.
90.502(4)(a).

* * *

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