The 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.