207 F. Supp. 3d 1321
S.D. Fla.2016Background
- Oliver Bivins, Sr. had court-appointed guardians who retained attorneys (Ciklin Lubitz & O’Connell and individual lawyers) and accountants to manage the guardianship while he was alive.
- After Bivins’s death, his son Julian Bivins became personal representative of the estate and sued the guardians and their attorneys for alleged breaches during the guardianship.
- Plaintiff seeks production of communications between the guardians and their attorneys/accountants; defendants assert attorney-client and accountant-client privileges.
- Central factual question: whether, under Florida law, the privilege belongs to the guardian (who hired counsel) or to the ward/estate (successor in interest) and thus can be waived by the personal representative.
- Procedurally, multiple protective-order and motion-to-compel discovery disputes were referred to the magistrate judge and fully briefed; the court held an evidentiary discovery hearing and issued this omnibus order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the attorney-client privilege for communications between guardians and counsel belongs to the ward/estate or to the guardian | Tripp line: estate succeeds to ward’s privilege and can waive it to obtain documents | § 90.5021 and recent authority: only the fiduciary (guardian/trustee) is the client; privilege belongs to guardian | Court: § 90.5021 controls; privilege runs to guardian and guardian’s counsel; plaintiff cannot waive it for the estate |
| Whether Florida § 90.5021 is effective despite the Florida Supreme Court declining to adopt it into evidence code | Statute remains law; post-2011 cases citing pre-2011 law don’t negate the statute | Statute supersedes pre-2011 case law and governs fiduciary-client relationships | Court: § 90.5021 is valid and unambiguous and supersedes pre-2011 Tripp decisions |
| Whether federal/Eleventh Circuit precedent affects privilege allocation | Relies on fairness and pre-2011 cases to argue estate access | Cites Bain and Walther (Eleventh Circuit and M.D. Fla.) supporting guardians-as-clients under § 90.5021 | Court: Bain and related authority support defendants; court adopts guardians-as-clients rule |
| Whether accountants’ confidential communications are privileged for the estate or the guardian | Plaintiff urges Tripp analogy; estate can waive accountant-client privilege | Defendants say accountant-client privilege is distinct and statute permits guardian to claim it; liability exception may apply | Court: accountant-client privilege runs to guardian under § 90.5055(3)(b) given facts; non-privileged documents must be produced, privilege log required, and court will conduct in camera review of withheld accountant communications |
Key Cases Cited
- Tripp v. Salkovitz, 919 So.2d 716 (Fla. 2d DCA 2006) (discusses fiduciary-duty exception and in camera review to identify ward-related communications)
- Jacob v. Barton, 877 So.2d 935 (Fla. 2d DCA 2004) (analyzes whether attorney represents trustee or beneficiary and privilege holder)
- Riggs Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709 (Del. Ch. 1976) (considers whether legal work was prepared for benefit of beneficiaries and thus discoverable)
- Saadeh v. Connors, 166 So.3d 959 (Fla. 4th DCA 2015) (holds guardian’s counsel may owe duties to ward but recognizes no attorney-client relationship)
- State v. Carter, 177 So.3d 1028 (Fla. 5th DCA 2015) (distinguishes guardian’s interests from ward’s in privilege contexts)
- Bain v. McIntosh, [citation="597 F. App'x 623"] (11th Cir. 2015) (interprets § 90.5021 as limiting client status to the fiduciary and supports guardian-as-client rule)