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California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine.  This can become a big issue in a will or trust contest when the attorney’s files may contain pivotal evidence as to the client’s intent, mental capacity and/or vulnerability to undue influence.

In a recent article in California Trusts and Estates Quarterly, attorneys Ciarán O’Sullivan and Andrew Verriere opine that an estate planner’s notes and other internal file materials likely qualify as work product under the California Code of Civil Procedure such that a court would decline to compel their production.  The authors advocate for a statutory change to facilitate the production of an estate planner’s entire file when the client is deceased.

What’s the Fuss About?

Consider a typical estate planning engagement.  Josephine survives her husband Harold.  At the age of 85, with mild cognitive impairment, she contacts an estate planning attorney to change her trust to favor daughter Diane over son Sam.

Lawyer Lila meets with Josephine, via Zoom, to discuss her testamentary wishes, including her attitude towards her children.  Lila, as in the photo above, takes careful notes as to what Josephine says and how she says it, and Lila includes observations about Josephine’s mental acuity.  Lila drafts the trust amendment.  When they meet again a few weeks later, they further discuss her estate planning wishes and Lila takes more notes.

After Josephine signs the amendment, the project is done and Josephine’s file disappears into Lila’s paper and/or electronic archives.

Five years go by.  Josephine dies.  Sam learns of the amendment and, predictably, is furious.  He is convinced that Diane manipulated Josephine into signing the amendment.  He hires Luisa, a fearsome litigator, to contest the amendment, alleging mental incapacity, undue influence and financial elder abuse.

After filing a petition in the probate court, Luisa’s next salvo is a subpoena to Lila the estate planner, seeking Lila’s entire file as a precursor to obtaining her testimony under oath in a deposition.

For unstated reasons, Lila chooses to withhold her internal file materials, including copious notes of her conversations with Josephine, on the theory that they are protected by the attorney work product doctrine.

Luisa marches off to court with a motion to compel production of the whole file, arguing that it may contain crucial evidence with respect to the validity of the amendment.  Luisa points out that, upon Josephine’s death, Lila’s file is no longer protected by the attorney-client privilege.

Judge Joni, however, rules that Lila need not produce her internal file materials because they are shielded by the attorney work product doctrine.

What Is the Work Product Doctrine?

The attorney work product doctrine is codified in California at Code of Civil Procedure sections 2018.020 and 2018.030.  The Legislature explains that the state’s policy is to preserve the rights of attorneys to prepare their cases for trial with the privacy necessary to do so thoroughly, including investigation of potentially unfavorable aspects.

Hence writings that reflect the attorney’s impressions, conclusions, opinions or legal research are not discoverable by the adverse parties, under any circumstances, as “absolute” work product.

Other attorney work product has “qualified” protection in that a court will allow it to be withheld unless doing so would unfairly prejudice the other side or result in an injustice.

California courts have extended the work product doctrine to transactional, non-litigation matters.  Thus, even though an estate planner is not preparing a case for trial when drafting documents for a client, the work product doctrine might encompass any internal notes that the planner generates during the engagement.

Why Should Estate Planning Files Be Discoverable When the Client Dies?

Most litigation regarding the validity and interpretation of wills and trusts, as in our story about Josephine, occurs after the client is deceased.  The estate planner then becomes a critical witness, as he or she crafted the document to accomplish the client’s express wishes, and the planner may be the only person who can offer a truly firsthand account.

As the Aaron Burr character sings in Hamilton: An American Musical, “no one else was in the room where it happened.”

The attorney-client privilege, of course, separately protects the confidentiality of private communications between lawyer and client.  Yet, as explained in a prior post, California Evidence Code sections 957, 960 and 961 create exceptions to the privilege when the client dies and litigation ensues regarding wills, trusts, deeds or other documents that the client signed.

The rationale is that deceased clients like Josephine presumably would want their communications disclosed so that their desires regarding the disposition of their estates may be ascertained and effectuated.

While the curtain of the attorney-client privilege draws back when the client passes, there is no such statutory exception with respect to the attorney work product doctrine.

In this author’s experience, estate planners usually choose not to assert the work product doctrine.  Instead, they produce their file, notes and all.  At their depositions, the planners then explain their notes, using them to refresh their recollections of their clients.  Indeed, given that many years may pass before the planner is called to testify, he or she may have scant recollection of the client other than what appears in the notes.

Yet, as O’Sullivan and Verriere recognize, estate planners may have a variety of reasons for being reluctant to turn over their notes.  For example, they may have an interest in the outcome of the litigation, they may worry that their notes may deepen their involvement, or they may be grumpy that they will not be paid for their time.

Thus, there’s variability and uncertainty as to whether the planner will produce file notes or select portions to withhold.

A Legislative Fix Would Help the “Quest for the Truth”

O’Sullivan and Verriere survey the laws of other populous states – New York, Texas, Illinois, Michigan and Florida – and find no work product protection for an estate planner’s notes and files in post-death inheritance disputes.

They propose California legislation that would preclude application of the work product doctrine in the context of post-death inheritance litigation by extension of the exceptions that already apply to the attorney-client privilege.

Such a clarification of California law would ensure that the drafting attorney’s notes can be taken into account when family members assess the terms of a loved one’s testamentary documents, and can be given appropriate weight when judges face sharply conflicting narratives regarding the decedent’s wishes.