Bivins v. Rogers, Civil No. 15-cv-81298-MARRA/MATTHEWMAN

• Decision Date: 07 September 2016
• Docket Number: Civil No. 15-cv-81298-MARRA/MATTHEWMAN
• Citation: 207 F.Supp.3d 1321
• Parties: Julian BIVINS, as personal representative of the ancillary estate of Oliver Wilson Bivins, Plaintiff, v. Curtis Cahalloner ROGERS, Jr., as former guardian, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

207 F.Supp.3d 1321

Julian BIVINS, as personal representative of the ancillary estate of Oliver Wilson Bivins, Plaintiff,

v.Curtis Cahalloner ROGERS, Jr., as former guardian, et al., Defendants.

Civil No. 15-cv-81298-MARRA/MATTHEWMAN

United States District Court, S.D. Florida.

Signed September 7, 2016

Joseph Ronald Denman, The Bleakley Bavol Law Firm, Tampa, FL, for Plaintiff.

Charles Leroy Pickett, Jr., Brian Bradshaw Joslyn, Charles Leroy Pickett, Jr., Ciklin Lubitz & O'Connell, Rachel Studley, Wicker Smith O'Hara McCoy & Ford, LLC, West Palm Beach, FL, Wendy J. Stein, Keller Landsberg PA, Fort Lauderdale, FL, Brandon Jay Hechtman, Wicker, Smith, O'Hara, McCoy & Ford, P.A., Coral Gables, FL, for Defendants.

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.

I. ISSUES PRESENTED

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 run between the guardian and the guardian's attorney or between the personal representative of the deceased ward's estate and the guardian's attorney? The Court's determination of the attorney-client privilege issue will require careful analysis of the so-called fiduciary-duty exception to the attorney-client privilege in light of applicable case law and the 2011 enactment of Section 90.5021, Florida Statutes. A secondary issue involves the application of Florida's accountant-client privilege to the same set of facts.

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.

II. BACKGROUND

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

(i) Attorney-Client Privilege

State law provides the rule of decision in diversity actions where a party asserts the attorney-client privilege. See, e.g., 1150 Brickell Assoc s. 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).

(A) 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,

Thus, it seems to me that whether or not disclosure of the document in question should be allowed in this instance must be determined in light of the purpose for which it was prepared, and the party or parties for whose benefit it was procured, in relation to what litigation was then pending or threatened. If it is determined that the beneficiaries were ultimately the persons intended to benefit from the legal assistance requested and the memorandum which was drafted in response thereto, the issue of the asserted right to inspect the document against the defensive claim of privileges comes into clearer focus.

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:

Thus, when confronted with the issue at hand here, a court must decide whose interests the attorneys represent-the trustee's or the beneficiary's. First Union Nat'l Bank of Fla. v. Whitener , 715 So.2d 979, 982 (Fla.5th DCA 1998). Usually, a lawyer retained by a trust represents the trustee, not the beneficiary, even though the fees are paid with trust funds that would otherwise go to the beneficiary. First Union Nat'l Bank v. Turney , 824 So.2d 172, 185–86 (Fla.1st DCA 2001) ; see also Compson , 629 So.2d at 851. If the attorney represents the trustee, the trustee holds the lawyer-client privilege. See § 90.502(2), (3)(a), Fla. Stat. (2001) ; Whi

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