OMNIBUS ORDER ON DISCOVERY MOTIONS
WILLIAM MATTHEWMAN, United States Magistrate Judge.
THIS CAUSE is before the Court on Defendants, Brian M. O'Connell, Ashley N. Crispin, Stephen Kelly, and Ciklin Lubitz & O'Connell's ("the CLO Defendants") Second Corrected and Amended Motion for Protective Order [DE 83]; Defendant Stephen Kelly's Motion for Protective Order Regarding Subpoena for Documents to Accountants [DE 85]; Defendant Curtis Cahalloner Rogers, Jr.'s Motion for Protective Order [DE 89]; Plaintiff, Julian Bivins, as ancillary Personal Representative of the Estate of Oliver Wilson Bivins' ("Plaintiff") Motion to Compel CLO Defendants' Response to Plaintiff's First Request for Production [DE 112]; and Plaintiff's Motion to Compel Stephen Kelly's Response to Plaintiff's First Request for Production [DE 113]. These matters were referred to the undersigned by United States District Judge Kenneth A. Marra. See DE 51. The motions have been fully briefed, and the Court held a discovery hearing on the motions on August 24, 2016.
This Order primarily addresses the legal issue of who, under Florida law, holds the attorney-client privilege when a guardian of a ward hires an attorney to assist the guardian. Specifically, after the death of the ward, does the attorney-client privilege
The Court's resolution of these issues will determine whether Plaintiff, as personal representative of the estate of the deceased ward, may step into the shoes of the deceased ward and waive the attorney-client privilege and accountant-client privilege and thereby obtain otherwise privileged documents from the attorneys and accountants retained by the deceased ward's guardians. The Court's Order will, therefore, address the interplay of Florida case law, federal case law, and the recently enacted Section 90.5021, Florida Statutes.
The basic underlying facts of this case are that Defendants Brian M. O'Connell and Ashely N. Crispin, as well as their law firm Defendant Ciklin Lubitz & O'Connell, were and are attorneys for the guardians appointed by the Florida state probate court to act for the interest of the ward, Oliver Bivins, Sr. Defendant Stephen Kelly was appointed as an emergency temporary guardian in 2011, Defendant Curtis Rogers was appointed guardian later in 2011, and Defendant Kelly was reappointed in 2014. Of course, the guardians were appointed for the ward, Oliver Bivins, Sr., while he was alive, and the guardians hired attorneys and accountants to assist them in handling the guardianship.
After Oliver Bivins, Sr., passed away, Plaintiff, one of his children, was appointed personal representative of the estate and then brought this action against the guardians and their attorneys based on alleged acts and omissions committed during the guardianship. Plaintiff generally alleges that the Defendants did not properly administer the guardianship to maximize its assets. Plaintiff has also been litigating against the guardians in state court.
In Plaintiff's Amended Complaint [DE 18], he alleges (1) breach of fiduciary duty against Defendants Rogers, O'Connell, Crispin, Ciklin, Stein, Beys, and Stein Law Firm; (2) breach of fiduciary duty against Defendants Kelly, O'Connell, Crispin, Ciklin, Stein, Beys, and Stein Law Firm; (3) negligence against Defendant Rogers; (4) negligence against Defendant Kelly; (5) professional negligence against Defendant O'Connell; (6) professional negligence against Defendant Crispin; and (7) professional negligence against Defendant Stein.
Several of the pending discovery motions [DEs 83, 89, 112, and 113] primarily deal with the issue of whether there was an attorney-client relationship between the attorneys representing the guardians and the ward, Oliver Bivins, Sr., and whether there is currently an attorney-client relationship between the attorneys representing the guardians and Oliver Bivins, Sr.'s estate. The Court's determination as to whether Plaintiff holds his deceased father's attorney-client privilege or whether the guardian holds the attorney-client privilege will dictate whether documents held by the attorneys must be produced to Plaintiff. One of the pending discovery motions [DE 85] presents the similar issue of whether there was an accountant-client relationship between the accountants hired by the guardians and the ward, Oliver Bivins, Sr., and whether there is currently an accountant-client relationship between the accountants and Oliver Bivins, Sr.'s estate.
III. LEGAL ANALYSIS
State law provides the rule of decision in diversity actions where a party asserts the attorney-client privilege. See, e.g., 1150 Brickell Assocs. v. QBE Ins. Co., 253 F.R.D. 697, 699 (S.D.Fla.2008); Fed. R. Evid. 501. Under Florida law, an attorney's client is permitted "to refuse to disclose, and to 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 legal services to the client." § 90.502, Fla. Stat. The confidentiality of attorney-client privileged communications "is an interest traditionally deemed worthy of maximum legal protection." State Farm Fla. Ins. Co. v. Puig, 62 So.3d 23, 27 (Fla.3d DCA 2011); Dykstra v. Florida Foreclosure Attorneys, PLLC, 191 F.Supp.3d 1378, 1379-80, 2016 WL 3344785, at *1 (S.D.Fla.2016). Under Florida law, the burden of establishing the attorney-client privilege rests on the party claiming it. Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691 (S.D.Fla.2007).
The Analysis under Tripp v. Salkovitz
The Court first shall analyze whether there is any attorney-client relationship between the personal representative of Oliver Bivins, Sr.'s estate and the attorneys representing the guardians. In Tripp v. Salkovitz, 919 So.2d 716 (Fla.2d DCA 2006), the court determined that the attorney-client privilege for all communications between the guardian and the guardian's attorney belonged to the estate as the ward's successor in interest. The Tripp court discussed the so-called fiduciary duty exception to the attorney-client privilege. Id. The court determined that in camera review would be necessary to determine "which documents are specifically related to the representation of the Ward's interest and are thus discoverable." Id. at 719.
The Tripp court primarily relied on two other cases in making its ruling. In Riggs Nat'l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709 (Del.Ch.Ct.1976), certain beneficiaries of a trust estate brought an action to compel the trustees to reimburse the estate for alleged breaches of trust. The beneficiaries moved to compel production of a legal memorandum prepared by an attorney. Id. at 710. The court explained,
Id. at 711. Ultimately, the court found that the memorandum was prepared for the benefit of the beneficiaries of the trust and not for the trustees' own defense in any litigation and that the "trustees' invocation of the privileges cannot shield the document involved herein from the beneficiaries' desire to examine it." Id. at 711-12.
The second case that the Tripp court relied on was Jacob v. Barton, 877 So.2d 935 (Fla.2d DCA 2004). In that case, the court found that the circuit court should have conducted in camera review to determine whether any of the explanatory entries of certain legal bills would be protected under the attorney-client privilege. Id. at 937. The court explained the following:
Barton, 877 So.2d at 937. Thus, under the Tripp line of cases, it would appear that Plaintiff holds his deceased father's attorney-client privilege and may waive the privilege to obtain the documents he seeks, and, further, that the guardians and the guardians' attorneys may not assert the attorney-client privilege to prevent the production of documents sought by Plaintiff.
(B) The 2011 Enactment of Section 90.5021, Florida Statutes
In 2011, however, the Florida legislature enacted Section 90.5021, Florida Statutes. This statute states as follows:
Fla. Stat. § 90.5021.
Plaintiff argues that the statute does not affect the prior case law, such as Tripp, Barton, and Riggs. Plaintiff contends that, because post-2011 cases cite the pre-2011 Tripp body of case law, the statute did not vitiate such prior case law. He also points out that the Florida Supreme Court declined to follow a recommendation to adopt Section 90.5021. Finally, Plaintiff asserts that it would be nonsensical to allow beneficiaries and estates to sue the attorneys who represent the guardians for malpractice (which Defendants concede beneficiaries and estates are permitted to do by law), but then prevent the beneficiaries
The Court's Analysis
Whether the Florida Supreme Court's Decision to Not Adopt Section 90.5021, Florida Statutes, Renders the Statute Ineffective
As to Plaintiffs argument that the Florida Supreme Court declined to follow a recommendation to adopt Section 90.5021, the Florida Supreme Court explained in a 2014 decision,
In re Amendments to Florida Evidence Code, 144 So.3d 536, 536-537 (Mem) (Fla. 2014). While the Florida Supreme Court did decline to follow the Committee's recommendation to adopt the new provision of the Evidence Code, it did so because the Court "question[ed] the need for the privilege to the extent that it is procedural" and not because the statute was unconstitutional or otherwise unlawful. The Florida Supreme Court's decision not to adopt Section 90.5021 because it questioned the need for the privilege "to the extent that it is procedural" did not vitiate or overturn the statute. Therefore, contrary to Plaintiff's argument, the statute remains the law in Florida.
Moreover, Section 90.5021 was expressly incorporated into the Probate Code pursuant to Administration of Estates and Florida Probate Rule 5.240(b)(2), which further supports the argument that it is currently in effect. Finally, secondary sources cite Section 90.5021 as a statute in effect. See, e.g., Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 90.5021 (2016 ed.). Thus, the Court rejects Plaintiff's argument that Section 90.5021 is not the current law in Florida. The Court also sees no reason to explore the legislative intent behind the statute since the wording of the statute is so clear and unambiguous.
Whether the Section 90.5021, Florida Statutes, Changed the Law on Attorney-Client Privilege
Plaintiff primarily cites two post-2011 cases to support his position that Section 90.5021 did not change the law. First, in State v. Carter, 177 So.3d 1028 (5th DCA 2015), a criminal case involving a motion to suppress, the court considered the medical professional-patient privilege and found that the privilege "is intended to protect the privacy of the patient, not the guardian. A guardian cannot rely on the protection of even a powerful and long-standing privilege when the privilege belongs to the ward and is counter to the ward's interests." Id. at p. 1031. The court then cited
Saadeh v. Connors, 166 So.3d 959 (Fla.4th DCA 2015), is the second post-2011 case in which a court relied on the pre-2011 body of law. In that case, the appellate court needed to determine whether the trial court had properly granted summary judgment on a finding that an attorney representing the appellant's court-appointed guardian owed the appellant no duty under a third-party beneficiary theory. Id. at 960. The court noted that "[e]ven though there is no lawyer-client relationship between the alleged incapacitated person who is a temporary ward and the lawyer for the emergency temporary guardian, counsel for the emergency temporary guardian owes a duty of care to the temporary ward." Id. at 963. It also stated that the appellant was the "apparent intended beneficiary of the guardian's attorney's services. It would be antithetical to suggest that a guardian — appointed for the sacrosanct reason of providing protection to the ward and at the ward's expense — could ever take any action which would knowingly be adverse to the alleged incapacitated person." Id. at 963-64.
The Saadeh court reversed and remanded and explained that "[a]s a matter of law, the ward in situations as this, is both the primary and intended beneficiary of his estate ... Whether there was a breach of the duty which caused damages obviously remains to be determined. But [the appellant] has a viable and legally recognizable cause of action against the guardian's attorney...." Id. at 964. The Saadeh case is distinguishable in that it considers the duties of a guardian's attorney to a beneficiary rather than whether the attorney-client relationship exists between the guardian's attorney and the beneficiary. Moreover, the court in Saadeh clearly stated that there is no such attorney-client relationship. Therefore, Saadeh provides little support for Plaintiff's position.
Eleventh Circuit Case Law
The various Defendants in this case rely on a 2015 Eleventh Circuit Court of Appeals opinion to support their argument that the estate has no attorney-client relationship with the guardians' attorneys, and, thus, Plaintiff cannot obtain any attorney-client privileged documents on the estate's behalf. In Bain v. McIntosh, 597 Fed.Appx. 623 (11th Cir.2015), the court explained the following:
Id. at 623-24.
The Bain case affirmed a case from the Middle District of Florida, Walther v. Kane, No. 6: 13-CV-472-0r1-37GJK, 2014 WL 3695385 (M.D. Fla. Jul. 24, 2014). The Walther case involved trust beneficiaries who were suing the attorney who represented the trustee for breach of fiduciary
Id. at *3.
Plaintiff distinguishes the Walther and Bain cases on the basis that they involved beneficiaries of a trust and the attorney for the trustee — and not a guardian of a ward and the guardian's attorneys — but, as pointed out by Defendants at the hearing on this matter, both trustees and guardians are specifically listed in Section 90.5021(1). The new statute considers both trustees and guardians to be equivalents in the wording of the statute. Bain, therefore, does provide support for Defendants' position that Section 90.5021 controls in this case.
Plaintiff's Fairness Argument
Plaintiff's final argument is that it would not be fair or logical for courts to prevent wards or their estates from obtaining documents from attorneys who represented their guardians when the wards paid the attorney's fees, and the legal work was completed on the wards' behalf. Plaintiff asserts that, since wards and their estates are permitted to sue the guardians' attorneys for malpractice, it would only make sense for the wards and their estates to be able to obtain the documents necessary to prove their malpractice cases. While Plaintiff's argument is arguably logical, the Court cannot simply ignore the applicable existing law. This Court will not make policy decisions as that is the job of the legislature. Whether it was prudent or not for the Florida legislature to enact Section 90.5021 is not within the purview of this Court. The fact of the matter is that Section 90.5021 is clear and unambiguous, and the statute supersedes the pre-2011 case law. Therefore, Plaintiff (as personal representative of the estate of the deceased ward) cannot step into the shoes of the ward and waive the attorney-client privilege under the facts of this case.
A secondary issue in this case is whether there exists an accountant-client relationship between Oliver Bivins, Sr.'s estate and the accountants hired by the guardians. See DE 85. Section 90.5055, Florida Statutes, sets forth the accountant-client privilege. It states in relevant part:
Fla. Stat. § 90.5055. Thus, the privilege would only protect any
Plaintiff's position is that, based upon the reasoning of the Tripp line of cases, Plaintiff (as personal representative of the estate of the deceased ward) steps into the shoes of the ward and has the right to waive the accountant-client privilege and obtain any confidential communications between the guardians and their accountants.
Defendants' position seems to be that the so-called fiduciary exception to the attorney-client privilege does not apply to the accountant-client privilege. Defendants further argue that, even if the fiduciary exception is applicable to the accountant-client privilege, the "liability exception" also applies. Under the "liability exception", Defendants argue, a fiduciary seeking the advice of counsel for his own personal defense in contemplation of adversarial proceedings against beneficiaries retains the attorney-client
The Court first notes that the attorney-client privilege and the accountant-client privilege are distinct. While Florida case law has consistently stated that the confidentiality of attorney-client privileged communications "is an interest traditionally deemed worthy of maximum legal protection", see Section III(i), supra, Florida courts have not deemed the accountant-client privilege worthy of such maximum legal protection.
The Court next notes that, while there has been extensive case law on Florida's attorney-client privilege, there has been very little case law on Florida's accountant-client privilege. Further, Florida's accountant-client privilege under Section 90.5055, Florida Statutes, protects only confidential communications between accountants and guardians, as Defendant concedes.
Moreover, although the attorney-client privilege analyzed in the Tripp line of cases is arguably analogous to the accountant-client privilege, the Tripp line of cases is not directly applicable to the accountant-client privilege. Nor does Section 90.5021 apply to the accountant-client privilege, as both parties recognize. Additionally, the Court notes that, while Section 90.5055(3)(c) states that the accountant-client privilege may be claimed by the personal representative of the deceased client, the statute also expressly states that the accountant-client privilege may be claimed by the guardian. See Fla. Stat. § 90.5055(3)(a).
In considering all of the applicable facts and law, the Court finds that the privilege in this case, under these unique facts, is between the accountants and the guardians rather than between the accountants and Oliver Bivins, Sr.'s estate. The Court rejects Plaintiff's argument that the Tripp line of cases should apply with equal force to the accountant-client privilege. Plaintiff has cited no authority, and the Court can find no authority through its independent research, that states that the Tripp line of cases should apply with equal force to the accountant-client privilege. Nonetheless, the Tripp line of cases may be informative to the extent that they suggest an in camera review procedure in the attorney-client privilege context which may be useful in the accountant-client privilege context.
Therefore, the Court will require that Marcus & Levin, CPAs, LLC, produce all non-privileged documents sought by the subpoena that have not already been produced by Defendant Kelly or by the other Defendants in this case. The Court will also require that Defendant Kelly complete a privilege log as to all privileged confidential communications sought by the subpoena and withheld from production. Further, in an abundance of caution and to ensure that the Court is fully informed as to the nature and content of the withheld confidential accountant-client communications, the court will review the documents withheld by Defendants in camera and issue a further Order subsequent to such in camera review.
In sum, the Court finds that Section 90.5021, Florida Statutes, supersedes the Tripp line of cases. Section 90.5021 established new substantive law in Florida. Pursuant to Section 90.5021, Bain, and Walther, the attorney-client privilege in this case runs between the guardian of the ward and the guardian's attorneys. Therefore, the guardians and the guardians' attorneys may assert the attorney-client privilege to prevent the production of privileged documents sought by Plaintiff.
Additionally, under Section 90.5055(3)(b) and the unique facts of this case, the guardians may assert the privilege as to any confidential communications held by the guardians' accountants. Given the language of Section 90.5055(3)(b) and the fact that the Tripp line of cases does not directly and specifically apply to the accountant-client privilege, the Court finds that the accountant-client privilege runs between the accountants and the guardians. Nonetheless, the Court will review in camera any confidential communications withheld by the accountants or Defendant Kelly after the preparation of a privilege log to determine whether the Court should enter any further Order on the accountant-client privilege issue in this case.
Based on the foregoing, it is hereby