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 protection is also codified in the Florida Evidence Code. Fla.Stat. 90.502 provides that both a lawyer and the client have a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client. The official comments to Rule 4-1.6 make it clear that the lawyer has an ethical obligation to assert the evidentiary privilege on a client’s behalf when it is applicable. Florida probate litigation involving will contests, trusts, and inheritance disputes frequently raises the issue of the scope and applicability of the lawyer’s duty to protect communications with a deceased former client.
For example, in Vasallo v. Bean, 2016 WL 6249167, 41 Fla.L.Weekly D2407e (3rd DCA October 26, 2016), an action to revoke the probate of two wills was brought by four of the testator’s children challenging the testamentary capacity of their mother and argued that the wills were the product of undue influence by a fifth child (the only named beneficiary in the challenged will). When the mother’s estate planning lawyer who prepared the challenged wills was asked during a deposition to state the reasons for the mother’s decision to disinherit her children so late in her life, the lawyer refused to answer questions. The probate lawyer claimed that it would be unethical for him to testify because the statements made to him were confidential under rule 4-1.6 of the Rules of Professional Conduct.
The Third District clarified this conundrum by pointing out the line of cases Florida holding that an attorney’s testimony about a testamentary instrument drafted by her is not ordinarily privileged because of the exceptions to the privilege in 90.502(4)(b) (providing that “[t]here is no lawyer-client privilege under this section when:…a communication is relevant to an issue between parties who claim through the same deceased client.”). The Court also noted that “[w]hen multiple parties claim through the same deceased client, as in a will contest or a challenge to testate or intestate succession, each party claims to best represent the interests of the deceased. To allow any or all parties to invoke the lawyer-client privilege prevents the swift resolution of the conflict and frustrates the public policy of expeditiously distributing estates in accordance with the testator’s wishes.”