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July 15, 2017
Amendments concerning fiduciary lawyer-client privilege

The Florida Bar’s Code and Rules of Evidence Committee (CREC) and Probate Rules Committee (FPRC) have submitted to the Florida Supreme Court a joint out-of-cycle report proposing that the Court adopt, to the extent it is procedural, section 90.5021 (Fiduciary lawyer-client privilege), of the Florida Evidence Code, which was created by chapter 2011-183, section 1, Laws of Florida. The Court previously declined to adopt section 90.5021, In re Amendments to the Florida Evidence Code, 144 So. 3d 536 (Fla. 2014), while in an unrelated case, the Court amended Florida Probate Rule 5.240(b)(2) to apply the section 90.5021 privilege. See In re Amendments to the Florida Probate Rules, 73 So. 3d 205 (Fla. 2011).

The Court invites all interested persons to comment on the proposal, which is reproduced below and online at http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the Court on or before August 14, 2017, with a certificate of service verifying that a copy has been served on the Committee Chair of the FPRC, Jonathan Adam Galler, 2255 Glades Rd., Ste. 421 Atrium, Boca Raton, Florida 33431-7382, [email protected], and Committee Chair of the CREC, Perry Michael Adair, 121 Alhambra Cir Fl 10, Coral Gables, Florida 33134-4540, [email protected], and on the Bar Staff Liaisons to the committees, Krys Godwin, [email protected], and Heather Savage Telfer, [email protected], The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chairs have until September 5, 2017, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE—2017 OUT-OF-CYCLE REPORT, CASE NO. SC17-1005

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).

[Revised: 12-12-2017]