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The Attorney-client Right Statutory Exceptions

The lawyer-client right has five constitutional exceptions. There is no attorney-client privilege on that subject if one of the exceptions applies, and the attorney is free to share specific protected correspondence with interested persons. The five lawyer-client privilege exceptions are as follows:


Crime/fraud exception

Under §90.502(4)(a), where the services of the lawyer were obtained or purchased to allow or assist someone to commit or attempt to commit what the client knew was a crime-the ‘Seal of Secrecy’ guarantees that “Communications “made for the intent of getting advice for the commission of a fraud or crime” do not cover between lawyer and client.” American Tobacco Company v. State, 697 So. (Fla. 4th DCA 1997) (quoting United States v. Zolin, 491 U.S. 554, 563, 105 L. Ed. 2d 469, 109 S. Ct. 2619 (1989)). 2d 1249, 1253 (Fla. 4th DCA 1997).

In National Bank vs. Turney of the First Union, 824 So. 2d 172 (Fla. 1st DCA 2001) authorized the predecessor bank of the trustee to subordinate a mortgage owned by the trust to one held by an associated bank. No conflict of interest was conveyed to the beneficiary. Subsequently, the mortgage borrowed funds from a third bank whose mortgage was taken over by the Federal Deposit Insurance Corporation (FDIC) following the collapse of that bank. As the FDIC’s mortgage had priority over the trusts, when the security was liquidated, there were insufficient funds to pay off the latter. The predecessor had retained counsel to represent the trust in its dealings with the FDIC and the mortgage and to examine the defenses of the predecessor against the receiver.

The court found that the exemption from crime-fraud applied because: (1) the bank acted fraudulently when it tried to obtain a general release from the beneficiary in return for a loan to the trusts to fund the purchase of the interest of the FDIC in the marina property, without revealing in full all the relevant facts; and (2) the lawyers of the bank took action on behalf of the trustee to create u

The court concluded that “the communications of a trustee with the lawyers of the trustee are confidential.” But when a trustee intentionally tries to defeat the interests of a beneficiary with the aid of an attorney, by withholding material details in breach of the fiduciary duty of the trustee, communications to that end between the trustee and the attorney of the trustee fall under the crime-fraud exemption to the protection of the attorney-client, and lose their confidential existence.


Testamentary exception

There is no lawyer-client privilege under §90.502(4)(b) if a contact is applicable to a problem between parties that say the same deceased client. The justification for such disclosure is that the intent of the client is encouraged. Swindler vs. the U.S., 524 U.S. 399; 118 S. 2081 Ct (1998). Furthermore, this section authorizes the inclusion of the testimony of an attorney about proof of the motive of the decedent when two plaintiffs claim the same bank accounts through the decedent who was the client of the attorney. 871 So, Caputo v. Nouskhajian. 2d 266 666 (Fla. 5th DCA 2004).


Breach of duty

Under §90.502(4)(c), where a contact is applicable to the problem of a breach of duty by the lawyer to the client or by the client to the lawyer, resulting from the lawyer-client relationship, there is no lawyer-client privilege.


Intention or competence of a client

Pursuant to §90.502(4)(d), there is no right of a lawyer-client where the contact is applicable to a matter relating to the intention or competence of a client performing an attested document to which the lawyer is a witness or to the execution or attestation of the document.

Therefore, an estate planning lawyer who is a witness attesting to a will or trust instrument may, on request, testify with respect to the circumstances surrounding the execution of the instrument, including opinions on the question of the competence of the client at that time. The notice to this subsection of the Law Revision Council makes it clear that the exception is limited to ‘attestation-relevant’ communications and that all other communications relating to the documents remain privileged. Under this exception, evidence “concerning the intention” of a client is limited to the intention of the client to execute the document and does not apply to correspondence of intent by the client with respect to the disposition of the estate or the drafting of the document. Muller’s In Re Guardianship, 650 So. 2d 698 698 (Fla. 4th DCA 1995).

Regardless of this exception, for the probate litigator, such findings by the solicitor are not confidential and are fair game. Wigmore says: “[T]hose data that in any event would have come to the notice of the attorney, by mere observation, without any action on the part of the customer, such as the color of his hat or the pattern of his shoe, and those data that are known by acts such as the customer would normally have done in any case, without any intention of communicating them to the attorney as his advisor, such as the s.” Wigmore 8, Evidence § 23066 . (McNaughton rev. 1961). See the following: Anderson v. State, 297 So. 2d 871 871 (Fla. 2nd DCA 1974).


Common interest exception

Under §90.502(4)(e), where a communication is related to a matter of common interest between two or more clients or their successors in the interest of a client, there is no lawyer-client privilege where the communication is relevant to a matter of common interest between two or more clients or their successors in the interest of a client, whether the communication was made by either of them to a lawyer retained or consulted in common when provided in a civil suit between clients or their successors in the interest of the client.

This legislative exemption is based on a mutual interest “matter.” The definition of “a matter” is a versatile term and usually includes “one transaction, occurrence, or event.” In addition, the exception of mutual interest extends only to communications “retained or consulted in common” to an attorney. A typical instance: to prepare their estate planning papers, both the husband and wife retain an attorney. The previous correspondence between the lawyer and the surviving spouse are not privileged in proceedings between the deceased’s estate and the surviving spouse.