§ 90.5021, Fla. Stat. — Fiduciary Lawyer-Client Privilege
Plain English
This is a targeted, important fix to the lawyer-client privilege for estate, trust, and guardianship work. When a client is acting as a fiduciary — a personal representative, trustee, guardian or guardian ad litem, conservator, curator, administrator ad litem, or attorney-in-fact — their communications with their lawyer are privileged under § 90.502 to the same extent as any other client’s. And critically, only the fiduciary is the lawyer’s client — not the beneficiaries. Florida thus rejects the “fiduciary exception” some courts use to let beneficiaries pry into a trustee’s legal advice. The crime-fraud exception still applies.
From the Courtroom
In trust and probate fights, beneficiaries love to argue, “The trustee’s lawyer really worked for us, so hand over the advice.” 90.5021 shuts that down: the fiduciary is the client, and the privilege holds. It’s a deliberate Florida choice that protects trustees from having every legal consult turned into discovery.
Key Points & Authority
- § 90.5021, Fla. Stat. — A client acting as a fiduciary holds the lawyer-client privilege to the same extent as any client; only the fiduciary (not the beneficiaries) is the lawyer’s client.
- (3) The crime-fraud exception of § 90.502(4)(a) still applies.
- Federal contrast: some federal courts apply a “fiduciary exception” allowing beneficiaries access to a fiduciary’s legal advice; Florida’s § 90.5021 expressly rejects that approach.
Federal Parallel
There is no numbered federal counterpart. Under Fed. R. Evid. 501, federal common law has at times recognized a “fiduciary exception” to the attorney-client privilege — the very thing Florida’s § 90.5021 was enacted to reject for fiduciary clients.
About this rule walkthrough
Part of The Evidence Code, hosted by John M. Phillips — Board Certified Civil Trial Lawyer, Court TV analyst, admitted in 8 states + 9 federal districts + SCOTUS.
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Educational only — not legal advice.
Rule Text (verbatim from the Florida Supreme Court)
(1) For the purpose of this section, a client acts as a fiduciary when serving as a personal representative or a trustee as defined in ss. 731.201 and 736.0103, an administrator ad litem as described in s. 733.308, a curator as described in s. 733.501, a guardian or guardian ad litem as defined in s. 744.102, a conservator as defined in s. 710.102, or an attorney in fact as described in chapter 709.
(2) A communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure under s. 90.502 to the same extent as if the client were not acting as a fiduciary. In applying s. 90.502 to a communication under this section, only the person or entity acting as a fiduciary is considered a client of the lawyer.
(3) This section does not affect the crime or fraud exception to the lawyer-client privilege provided in s. 90.502(4)(a).
Educational reference. Educational only — not legal advice.
What this rule means in plain English
Section 90.5021 protects a fiduciary client’s communications with their lawyer under §90.502 to the same extent as any client; only the fiduciary, not the beneficiaries, is the client — rejecting the fiduciary exception. The crime-fraud exception still applies.