The attorney-client privilege in California belongs to the office of trustee, not to the incumbent in that office, thus generally allowing successor trustees to obtain confidential communications that their predecessors had with counsel. We blogged last year about an appellate opinion that reinforced this concept.
Last month, in Morgan v. Superior Court (2018) 23 Cal.App.5th 1026, the Court of Appeal found that a clause in a trust instrument expressly allowing a trustee to withhold attorney-client communications violates public policy and is unenforceable. California estate planning attorneys take note: there is no way to draft around the rule that the attorney-client privilege stays with the office of trustee.
One challenge that California trustees face is the prospect that confidential attorney-client communications will pass to successor trustees if they resign or are removed from office. The attorney-client privilege belongs to the client, but the client is the office of the trustee, not the incumbent who holds that office. Hence, the successor trustee generally gets to see the privileged communications of the predecessor, as the California Supreme Court explained in