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Opening Curtains_EditThe attorney-client privilege, a bedrock principle of our legal system, protects confidential communications between clients and their attorneys, and the lawyer’s duty to preserve client confidences generally continues after the death of the client. Under the California Business and Professions Code, lawyers must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

To what extent does the attorney-client privilege apply when there is a trust contest, will contest, or a fight over the interpretation of estate planning documents? Usually, the attorney who drafted the questioned document(s) is a central witness, for example, as to mental capacity or undue influence. Estate planners are often unfamiliar with the rules that apply when their work product is subject to litigation.

The California Evidence Code contains several exceptions to the attorney-client privilege that generally dissolve the privilege when the client is deceased and there is a dispute over his or her assets. The common rationale for the exceptions is the presumption that the deceased client would want all communications with his or her attorney disclosed so that his or her true desires can be ascertained and effectuated.

The key exceptions may be summarized as follows:

Evidence Code section 957: If parties are making competing claims to property from the deceased client, whether the claims relate to a will, trust, beneficiary designation, or lifetime transaction, there is no privilege as to relevant attorney-client communications.

Evidence Code section 959: If the lawyer notarizes a document for a client as an attesting witness, there is no privilege as to issues concerning the intent or mental competence of the client when the client executed the document, or concerning the execution or attestation of that document.

Evidence Code section 960 and section 961: If the client executes a deed of conveyance, will or other writing (such as a trust instrument) purporting to effect an interest in property, there is no privilege following the client’s death as to a communication relevant to either the client’s intent or the validity of the document.

In the typical California will contest, trust contest, or fight over a beneficiary designation, one or more of these four Evidence Code sections will apply to open up the pertinent parts of the lawyer’s file to the litigants and to allow them to obtain deposition and trial testimony from the attorney. Many drafting attorneys, when asked to do so, will recognize the exceptions to the attorney-client privilege and produce their files to the potential contestant even before litigation begins. This will allow the potential contestant to get a preview of the file and may dissuade him or her from proceeding with litigation.

Yet drafting attorneys should evaluate how the privilege exceptions apply to the various contents of their files and to the information that they received from their clients. There may be some work that does not fall within any exception. For example, if the lawyer advised the client on a personal matter unrelated to his/her estate, it may remain privileged unless one of the litigants can show that the advice is related to the current dispute. Also, complications may arise if the lawyer’s client was a business entity owned fully or partially by the decedent, rather than the decedent directly. The business entity, not the decedent, may be the holder of the privilege.

Of course, even if the attorney-client privilege does not apply, the decedent’s statements to his or her counsel may still be inadmissible for other reasons such as the rule against hearsay. Evidence Code section 1260 and section 1261 offer exceptions to the hearsay rules, but they are limited in scope. Still, in my experience, trial judges tend to be permissive in receiving evidence of written and oral statements of decedents in the context of California trust and estate litigation.