CopyCited 2 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 541, 2011 Fla. LEXIS 2287, 2011 WL 4467595
...Consistent with statutory changes made by chapter 2011-183, section 8, Laws of Florida (amending §
733.212, Fla. Stat. (2010)), subdivision (b)(2) of rule 5.240 (Notice of Administration) is amended to require that a notice of 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." Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion....
...ther the estate is testate or intestate, and, if testate, the date of the will and any codicils; (2) the name and address of the personal representative and of the personal representative's attorney, and 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; (3) that any interested person on whom the notice is served who challenges the validity of the will, the...
CopyPublished | Supreme Court of Florida
...s, as the concurring
opinion suggests we can with the Daubert amendment?
Another example: In 2014, the code and rules of evidence committee
recommended in its regular-cycle report that we adopt as procedural the
legislature’s creation in section 90.5021 of a “fiduciary lawyer-client privilege.”
Amends....
...RE Committee)
(collectively Committees) asking this Court to reconsider its 2014 decision not to
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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.”)....
CopyPublished | Supreme Court of Florida
...) 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....
...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....
...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....
...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....
...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....
