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Trusts and Estates

Ca. Trs. & Estates Quarterly 2017, Volume 23, Issue 4

"FLY ON THE WALL" – DISCOVERY OF ATTORNEY FEE STATEMENTS

By Mary Gillick, Esq.*

I. INTRODUCTION

Attorneys generally bill time in tenths of an hour, dutifully keeping for clients a contemporaneous record of everything from conversational topics, to areas of law researched, to summaries and outcomes of court hearings. Those time records are then compiled, often with the same level of detail, into an invoice which is sent to the client. What happens, when someone other than the client tries to examine the contents of the invoices, either through formal discovery or some other procedure? This is especially worrisome in the trusts and estates context for trustees or personal representatives and their counsel. If a beneficiary demands an accounting, how much detail must be provided regarding legal fees? What if the attorney fees have been paid from the trust or the estate? Can a valid claim of attorney-client privilege be asserted to allow the client to maintain confidentiality of the invoices? The answer depends largely on two things (1) the jurisdiction, and (2) the level of detail contained in the invoices.

II. ATTORNEY-CLIENT PRIVILEGE

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