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Trusts and Estates

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

LAND OF CONFUSION: ATTORNEY-CLIENT PRIVILEGE AND DUTY OF CONFIDENTIALITY IN GUARDIANSHIPS AND CONSERVATORSHIPS

By Nicholas J. Van Brunt, Esq.* and John D. Rees III, Esq*

I. INTRODUCTION

The attorney-client privilege "has been a hallmark of Anglo-American jurisprudence for almost 400 years."1 It is axiomatic that "[t]he fundamental purpose of the attorney-client privilege is the preservation of the confidential relationship between attorney and client."2 Indeed, this purpose is fundamental insofar as "it encourages the client to make complete disclosure to his or her attorney of all facts, favorable or unfavorable, without fear that others may be informed."3

In corollary fashion, the duty to maintain the confidences of a client is also fundamental. The California Legislature has mandated that an attorney is charged with the duty "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,"4 unless "necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual."5 Together, an attorney’s duties to not reveal privileged information or client confidences foster candid, thorough discussions between those seeking legal advice and those providing it.

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