In Vasallo v. Bean, No. 3D16-1862, 2016 WL 6249157, at *1 (Fla. Dist. Ct. App. Oct. 26, 2016), this action seeks to revoke probate of two wills, one executed in 2012 and another in 2013. Four of the five testator’s children challenge the capacity of their mother when upon review of the testator’s 2013 will they noticed the fifth sibling had influenced their mother to make changes to the will. According to the four children, the changes made by the mother were the product of undue influence and only name the fifth child as the devisee in the testator’s latest will.
Petitioner, Christopher Vasallo, Esq., was the testator’s estate planning attorney for both of the testator’s wills. Vasallo seeks certiorari review of the trial courts order compelling Vasallo to disregard attorney client privilege and answer the deposition questions relating to the testator’s ‘reasons for disinheriting the other children’.
This Court denies the petition for writ of certiorari and reasons that Petitioner Vasallo has failed to establish that the trial court’s order constitutes a departure from the essential requirements of law. The Court reasons “[t]here is no lawyer-client privilege under this section when: … A communication is relevant to an issue between parties who claim through the same deceased client.” Vasallo v. Bean, No. 3D16-1862, 2016 WL 6249157, at *1 (Fla. Dist. Ct. App. Oct. 26, 2016)
“See also Law Revision Council Note (1976) § 90.502(4)(b) (noting that “[w]hen multiple parties claim through the same decedent, as in a will contest or a challenge to testate or intestate succession, each party claims to best represent the interests of the deceased. To allow any or all parties to invoke the lawyer-client privilege prevents the swift resolution of the conflict and frustrates the public policy of expeditiously distributing estates in accordance with the testator’s wishes. This subsection simply disallows the privilege in favor of the policies stated above”)”
Petitioner responds be asserting Rule 4-1.6, Rules Regulating the Florida Bar govern the statements made to him by the testator and are “confidential”. The Court in this case views Petitioner’s argument as ineffective because as held in another case, “Observing the distinction between the Ethics Code and Evidence Code is significant because Florida courts have interpreted the Ethic’s Code’s rule of client-lawyer confidentiality to be broader in scope than the Evidence Code’s attorney-client privilege.” Coffey Garcia v. South Miami Hosp., Inc., 194 So.3d 533, 536 n. 1(Fla. 3d DCA 2016)
The attorney-client privilege as it pertains to disclosure in judicial and administrative hearings is governed by the Florida Evidence Code, Section 90.502, Florida Statues (2103). Whereas the right to confidentiality as as it pertains to disclosure outside the judicial and administrative hearings is governed by the Rules Regulating the Florida Bar 4-16. This is also referred to as the client-lawyer confidentiality.
Under the Evidence Code “[a] client has a privilege to refuse to disclose, and prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of the legal services to the client. The privilege protects only communications between lawyer and client, it does not protect facts known by the client independent of any communications with the lawyer, even if the client later tells the fact to the lawyer “the communication between the attorney and client is privilege, but the underlying facts are discoverable.” S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1387 (Fla.1994).
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