ACCESSING THE BLACK BOX – WHAT EVERY ESTATE ATTORNEY NEEDS TO KNOW ABOUT ATTORNEY-CLIENT PRIVILEGE
By Benjamin D. Fox, Esq.*
Whether planning, administering, or litigating an estate or trust, an attorney should keep the attorney-client privilege at the forefront of his mind. The privilege is robust and longstanding, but with several nuances and exceptions. Furthermore, the law on privilege, both universally and specifically as to estate and trust litigation, has undergone a recent and substantial overhaul. This article will first address the foundational elements of attorney-client privilege. These "basics" of the privilege demonstrate how the privilege can exist in unexpected scenarios and how the California Supreme Court radically affected the scope of privilege in 2016. Next, this article will address how the personal representative of an estate holds the privilege for the decedent, and then how the privilege moves from one successor trustee of a trust to the next. Finally, this article will address the exceptions to the privilege specific to trust and estate litigation. In the context of trust and estate litigation, the paramount concern for courts is the decedent’s capacity and intent. A determination of these issues often depends on accessing one of the most protected black boxes in the legal world: attorney-client privilege.1
I. THE NOT SO SIMPLE BASICS OF ATTORNEY- CLIENT PRIVILEGE
A foundational understanding of the attorney-client privilege is essential both to fully protect the privilege and to better comprehend the exceptions to it. Elementally, attorney-client privilege is statutory in nature and founded in Evidence Code sections 952 and 954, statutes worth re-reading at a deliberately slow pace to truly appreciate their content. The privilege applies to "confidential communications between client and lawyer."2 Evidence Code section 952 defines confidential communications between client and lawyer as 1) information transmitted between a client and his or her lawyer; 2) in the course of that relationship; and 3) in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those necessary to further the interests of the client.