A Pennsylvania estate lawyer cannot assert attorney-client privilege or a work-product exception to quash a subpoena seeking her ex-client’s entire file to contest a will in Florida, the Pennsylvania Superior Court ruled.
West Palm Beach attorney Jami Huber is representing relatives of the late Clara Anna Claitor in a lawsuit filed in Osceola County challenging Claitor’s revised trust, which was prepared with the help of a Florida attorney, Superior Court President Judge Susan Peikes Gantman wrote in a nonprecedential Oct. 23 opinion
The change altered a trust originally prepared by Pennsylvania attorney Susan Noonan and cut out Huber’s clients in favor of making Claitor’s great-niece, Karen Nannette Woods, the sole beneficiary.
For the Florida action, Huber subpoenaed Claitor’s estate file from Noonan, but Noonan argued the documents were privileged and filed a motion to quash the subpoena or get a protective order in the Lehigh County Court of Common Pleas.
Huber of The Law Firm of Jami L. Huber asked the trial court to apply Florida law, which has a “testamentary exception” to attorney-client privilege that would make the documents sought discoverable.
Ultimately, Judge J. Brian Johnson largely sided with Huber, granting Noonan’s motion only to the extent that the subpoena requested ”opinion work product,” Gantman said.
Johnson found an actual conflict between Florida law and Pennsylvania law, which does not have a testamentary exception. He also determined Florida had “the largest interest in the outcome of the underlying litigation.”
“Florida is where the underlying litigation is pending; Florida is where the defendants in that litigation reside; Florida is the situs of the trusts at issue in the underlying litigation; and the circuit court in and for Osceola County, Florida, probate division is where the ultimate outcome of the underlying case will be decided,” Johnson noted.
On appeal, Noonan argued Pennsylvania law should apply because Pennsylvania has the greater policy interest in applying its attorney-client privilege.
But Gantman, joined by Judges Lillian Harris Ransom and Maria McLaughlin, disagreed, finding the dispute was governed by Florida law.
“We agree a conflict exists between Florida and Pennsylvania law on this privilege and approve of the trial court’s choice of law analysis,” Gantman said. “Pennsylvania is not the forum state for that litigation, and Florida has the principal interest in its resolution. On the other hand, Pennsylvania has no interest in the outcome of the Florida case and is involved due only to a subpoena derivative of the Florida case.”
Counsel for Huber, Zachary Cohen of Lesavoy Butz & Seitz in Allentown, Pennsylvania, said he was pleased with the result but slightly disappointed the court didn’t use the case as an opportunity to adopt a testamentary exception in Pennsylvania.
Noonan’s attorney, Paul Troy of Kane, Pugh, Knoell, Troy & Kramer in Norristown, Pennsylvania, could not be reached for comment by deadline on Huber v. Noonan.