Every Florida attorney has a duty of loyalty to his or her client, and this duty of loyalty also means the Florida attorney has a duty to keep the relationship confidential. Every attorney in Florida, regardless of what field of law he or she practices, must perform these duties and act in the best interest of the client. This obligation of confidentiality, as well as the Florida attorney-client privilege, can become complicated to enforce, especially in estate planning.
Ethical Duty of Confidentiality vs. Florida Attorney-Client PrivilegeMany people confuse the ethical duty of keep information confidential with Florida attorney-client privilege. Often, the two legal concepts are used hand in hand. The attorney-client privilege in Florida is a rule of evidence that makes communications between the lawyer and client privileged and not subject to disclosure.
The ethical rule of confidentiality can be found in Rule 4-1.6(a) of the Florida Rules of Professional Conduct. This rule prohibits the voluntary disclosure of information relating to the representation of a client without the client’s consent. This duty applies to all information given to the attorney in Florida by the client regardless of any prior determinations. Any information relating to the representation is always confidential. A Florida attorney is forbidden from voluntarily disclosing communications and documents unless an exception applies.
The Florida attorney-client privilege is located in Section 90.502 of the Florida Evidence Code. This law protects the client from compelled disclosure of a confidential client communication. This privilege applies during the litigation process. With regards to estate planning, these communications include not only written and oral communications but also the Will or trust document. For this privilege to apply, the communication must have been made while the attorney was giving legal services to the client, and the communication must have been confidential.
The Importance of the Privilege in FloridaThe Florida attorney-client privilege applies in judicial proceedings in which a lawyer may be called as a witness or may be compelled to produce evidence against the client. The client holds the privilege, which means he or she may prevent the attorney from doing so. This rule allows a client to disclose information to the attorney without fearing this information may later be used against the client.
The rule of confidentiality is much broader than the evidentiary privilege. The rule of confidentiality applies to “any information relating to the representation of the client.” This duty applies whether or not the client is involved in any litigation.
A Florida lawyer’s duty of confidentiality also survives the client, so it applies to the attorney even after the client is dead. A lawyer cannot disclose confidential information following the client’s death. This same rule also applies to the privilege against compelled disclosure. The Florida Evidence Code further states the personal representative of a deceased client may claim the privilege.
Exceptions to the Duty of Confidentiality in FloridaThere are a few exceptions to the duty of confidentiality in Florida. The client can waive the duty of confidentiality if the client consents to the waiver. An attorney in Florida may also waive this duty and reveal confidential information “to serve the client’s interest” as long as the client has not expressly prohibited the disclosure.
For more information on how the Florida attorney-client privilege and the duty of confidentiality apply in Florida estate planning contact The Law Office of David Goldman PLLC today.