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How Does Florida’s New Fiduciary Lawyer-Client Privilege Section Affect Business Litigation?

In 2011, the Florida state legislature enacted a fiduciary lawyer-client privilege rule into the state’s evidence code (§ 90.5021). Simply put, this statute states that communications between a lawyer and a client who is acting as a fiduciary are privileged, and therefore, those communications are entitled to the same protections from disclosures as are communications between lawyers and clients who are not fiduciaries.

In the following years, there has been significant confusion regarding how exactly this statute applies. On January 25th of 2018, the Supreme Court of Florida took action to bring some clarity to this issue. The state’s highest court officially adopted the fiduciary lawyer-client privilege, explicitly stating that this ruling is retroactive to the legislature’s decision to enact the rule in 2011. Here, our legal team explains how this decision could impact business litigation in Florida.

Understanding Lawyer-Client Privilege

Under § 90.502 of the Florida Evidence Code, clients have the right to have ‘protected’ communications with their legal representative. In litigation, opposing parties do not have the ability to force people to turn over protected communications with their lawyer. Likewise, a lawyer cannot be compelled to testify against their own client. This is important because it allows people to get legitimate legal advice.

Understanding Fiduciary Duties

A fiduciary duty is the highest standard of care under the law. A person who has a fiduciary obligation to another party, whether to an individual, to a corporation, or to a partnership, has the responsibility to always act in the best interests of the party that they are representing. For instance, a corporate officer owes a fiduciary duty to the shareholders of their company. The corporate officer must always put the best interests of the company (and the shareholders) first, even above their own personal best interests.

Business Litigation: Fiduciaries Can Have Protected Communications With Attorneys

Under the previous rules, there were some cases in which a beneficiary could seek to get access to certain communications between their fiduciary and their fiduciary’s attorney. Under this type of system, fiduciaries are largely prevented from invoking attorney-client privilege.

However, the Supreme Court of Florida has now clarified that there is no exception to lawyer-client privilege in the state. In business litigation involving fiduciaries, the fiduciaries have the legal right to have protected communications with their attorney.

If you are a fiduciary, or you are involved in business litigation in Clearwater, your communications with your legal representative are covered by lawyer-client privilege. Likewise, if you are a beneficiary in Clearwater, and you are bringing a lawsuit against your fiduciary, they will be able to make protected disclosures to a legal representative.

Contact Our Florida Business Litigation Attorney Today

At Clearwater Business Law, our law firm is committed to protecting the legal rights and financial interests of businesses in Florida. To request a confidential business litigation consultation, please contact us today. With an office in Clearwater, we serve clients throughout Pinellas County, including in Highpoint, Largo, and Palm Harbor.