In Re: Amendments to the Florida Evidence Code - 2017 Out-of-Cycle Report

• Court: Supreme Court of Florida
• Decided: January 25, 2018
• Docket: SC17-1005
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC17-1005 ____________

IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE - 2017 OUT-OF-CYCLE REPORT.

[January 25, 2018]

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

1. See In re Amends. to Fla. Probate Rules, 73 So. 3d 205 (Fla. 2011).

-2- 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,

-3- 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.

2. See ch. 2011-183, § 14, Laws of Fla.

-4- Original Proceedings – Florida Bar Code and Rules of Evidence Committee

Perry Michael Adair, Chair, and Gregory Paul Borgognoni, Past Chair, Code and Rules of Evidence Committee, Coral Gables, Florida; Jonathan Adam Galler, Chair, Florida Probate Rules Committee, Boca Raton, Florida, Michael Travis Hayes, Past Co-Chair, and Jon Scuderi, Past Co-Chair, Florida Probate Rules Committee, Naples, Florida; and Joshua E. Doyle, Executive Director, Heather Savage Telfer, Staff Liaison, and Mikalla Andies Davis, Attorney Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

Robert W. Goldman, Naples, Florida; and George J. Taylor, Fort Lauderdale, Florida,

Responding with Comments

-5- 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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