Summary
The Florida Second District Court of Appeal reviewed a nonfinal discovery order concerning the attorney-client privilege arising from communications between a plenary guardian and its attorney. The court held that the trial court properly ordered an in camera inspection to distinguish communications concerning the ward from those concerning the guardian itself, but erred by finding that the ward's estate held the privilege as to all communications. The petition for certiorari was granted in part and denied in part, and the overly broad portion of the order was quashed.
Topics
Practice areas
Questions Presented
- Whether the trial court properly determined that the Estate held the attorney-client privilege as to all confidential communications between the guardian and its attorney after the guardian's appointment.
- Whether written communications between the guardian and its attorney were subject to in camera inspection to determine which communications concerned representation of the Ward's interests and were discoverable by the Estate.
- Whether the trial court's nonfinal discovery order departed from the essential requirements of law and caused irreparable material harm warranting certiorari relief.
Holdings
- The Estate, as the Ward's successor in interest, may hold the attorney-client privilege only as to communications specifically related to the attorney's representation of the Ward's interests. The trial court erred by finding that the Estate held the privilege as to all confidential communications between Tripp and ACPS.
- The trial court properly ordered written communications submitted for in camera inspection to determine which documents concerned representation of the Ward's interests and were discoverable by the Estate.
- Certiorari relief was appropriate as to the portion of the nonfinal order finding that the Estate held the attorney-client privilege for all confidential communications between Tripp and ACPS after January 7, 2002.
Key quotations
“The finding that the Estate holds the privilege as to all communications is contrary to the holding in Jacob.” (919 So. 2d at 719)
“Accordingly, the petition for a writ of certiorari must be granted as to this part of the order.” (919 So. 2d at 719)
Factual background
Adult Comprehensive Protection Services was appointed plenary guardian of Mark J. Salkovitz on January 7, 2002, and retained Thomas G. Tripp as its attorney in providing guardianship services. After Salkovitz's death, his personal representative and widow sued the petitioners concerning alleged failures to manage his financial affairs and protect his residence from foreclosure. During discovery, the Estate sought confidential communications between the guardian and Tripp and asked the trial court to determine whether the guardian could invoke the attorney-client privilege.
Procedural history
The trial court appointed Adult Comprehensive Protection Services as plenary guardian of Mark J. Salkovitz and authorized it to retain Thomas G. Tripp as counsel. After Salkovitz died, his personal representative and widow sued the petitioners for negligence and breach of fiduciary duty and sought discovery of communications between Tripp and the guardian. The trial court ruled that the Estate held the privilege as to all communications and ordered written communications submitted for in camera inspection. The petitioners sought certiorari review, and the District Court of Appeal granted the petition in part and denied it in part.
Remand instructions
The portion of the trial court's order holding that the Estate possessed the attorney-client privilege as to all confidential communications between Tripp and ACPS after January 7, 2002, was quashed. The petition was otherwise denied, leaving the in camera inspection of written communications in place.