DEAD MAN TALKING: IS THERE LIFE AFTER DEATH FOR THE ATTORNEY-CLIENT PRIVILEGE?

By William R. Burford and Terence S. Nunan

I. INTRODUCTION

On Valentine’s Day 2005, the Supreme Court of California delivered a small surprise to some members of the bar. In HLC Properties, Ltd. v. Superior Court,¹ a royalties disputes involving the recordings by the late Harry Lillis (Bing) Crosby, the court ruled that, under §§ 953 and 954 of the California Evidence Code, the attorney-client privilege was extinguished upon the discharge of Crosby’s executor in 1981 and consequently that dozens of decades-old written communications to and from Crosby’s lawyers were subject to disclosure.

Most probate lawyers are already aware that a personal representative is entitled to claim or waive the attorney-client privilege on behalf of a decedent and are familiar with various exceptions to the privilege recognized when a decedent’s testamentary intentions are placed at issue. Some (thoroughly nonscientific) polling suggests, however, that few practitioners understand the attorney-client privilege to vanish entirely upon the discharge of an executor or estate administrator, and fewer still have ever considered the impact post-death probate procedures and pre-death planning can have on the viability of the attorney-client privilege after a client’s death.