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The Pennsylvania Superior Court has ruled that a Pennsylvania estate lawyer cannot assert attorney-client privilege or the work product doctrine to quash a subpoena seeking her ex-client's entire file for use in a Florida will contest action.

According to Superior Court President Judge Susan Peikes Gantman's nonprecedential Oct. 23 opinion in Huber v. Noonan, West Palm Beach, Florida-based attorney Jami Huber is representing several relatives of decedent Clara Anna Claitor in a lawsuit filed in Osceola County, Florida, challenging Claitor's revised trust. The revised trust, which was prepared with the help of a Florida attorney, altered a trust originally prepared by Pennsylvania attorney Susan Noonan and served to cut out Huber's clients in favor of making Claitor's great-niece, Karen Nannette Woods, the sole beneficiary.

For the purposes of the Florida action, Huber subpoenaed Claitor's entire estate file from Noonan, but Noonan, arguing that the documents were privileged, filed a motion to quash the subpoena/motion for a protective order in the Lehigh County Court of Common Pleas.

Huber countered that the trial court should apply Florida law, which has a “testamentary exception” to the attorney-client privilege that would make the documents sought discoverable.

Ultimately, Lehigh County Court of Common Pleas Judge J. Brian Johnson largely sided with Huber, granting Noonan's motion only to the extent that the subpoena requested ”'opinion work product,'” and denied the motion in all other respects, Gantman said.

Johnson found that there is an actual conflict between Florida law and Pennsylvania law, which does not have a testamentary exception.

Johnson also determined that 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 said.

On appeal, Noonan argued that Pennsylvania law should apply to the dispute 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 that 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. “The primary action is the estate case pending in Florida. 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. Thus, we cannot allow Pennsylvania indirectly to control the Florida estate litigation and defer to Florida law, which has seen fit to adapt to the particular circumstances at issue, by way of its testamentary exception to the attorney/client privilege.”

Counsel for Huber, Zachary Cohen of Lesavoy Butz & Seitz in Allentown, 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, could not be reached for comment.

(Copies of the 15-page opinion in Huber v. Noonan, PICS No. 18-1337, are available at http://at.law.com/PICS.)