Category: Ethics

attorney-client-privilege-image

Does the Attorney-Client Privilege Apply After the Death of a Client?

What Happens To Privilege When a Client Dies?

The Basics of Attorney-Client Privilege

Pursuant to Business and Professions Code section 6068, subd. (e), an attorney must maintain inviolate a client’s confidences.  The only exception in that statute is that an attorney may, but is not required to, reveal confidential information to the extent that the attorney reasonably believes the disclosure is 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.

But, the Evidence Code and applicable case law provide that the rules applicable to disclosure of a client’s confidences change after the client dies.

Evidence Code section 955 provides that an attorney may only claim the attorney-client privilege on behalf of a client if the attorney is authorized to claim the privilege under Evidence Code section 954(c).

The Importance of Holder of the Privilege

Evidence Code section 954(c) provides in relevant part: …”[the lawyer] may not claim the privilege if there is no holder of the privilege in existence…”  (Emphasis added.)

Evidence Code section 953 defines “holder of the privilege” and provides in relevant part: “…‘holder of the [attorney-client] privilege’ means:

(c) The personal representative of the client if the client is dead…”

This subsection expressly limits the holder of the attorney-client privilege to the personal representative, i.e. an executor, administrator or special administrator appointed by the court.  Simply being nominated in a will does not make one a “personal representative.”

Statement from the California Supreme Court on Privilege After Death

The California Supreme Court, in analyzing Evidence Code sections 953, subdivision (c) and 954, stated: “Taken together, these two sections unambiguously provide that only a personal representative may claim the attorney-client privilege in the case of a deceased client.”  (HLC Properties Ltd. v. Super. Ct. (2005) 35 Cal.4th 54, 65.)  The Court went on to conclude that when there is no personal representative the attorney-client privilege terminates.  (Id. at 66.)

In many cases today there will not be a court-appointed personal representative because prior to death the decedent transferred all of her assets to a trust.  And, a trustee is not a personal representative.  (Prob. Code §58.)  Accordingly, in situations where there is no personal representative, then there is no holder of the privilege and the attorney cannot assert the attorney-client privilege on behalf of a deceased client.

Exceptions to Attorney-Client Privilege Without a Personal Representative

An attorney should also be aware that even when the attorney-client privilege is not terminated because there is a personal representative, the Evidence Code provides exceptions to the attorney-client privilege in several situations, primarily involving a decedent’s estate planning, which require the attorney to reveal the client’s confidential information.  (See Evid. Code §§956-962.)

Evidence Code section 957 provides:

“There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction.”

Evidence Code section 960 provides:

“There is no privilege under this article as to a communication relevant to an issue concerning the intention of a client, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the client, purporting to affect an interest in property.”

In Summary, Careful Evaluation is Required

The above authorities show that after the death of a client an attorney must carefully evaluate whether she is still required to maintain a client’s confidences.

 

Hand Signing Document

The California “End of Life Option Act”

California is the fifth state in the United States to legalize aid-in-dying through a law called the End of Life Option Act.

This law permits a competent, terminally-ill patient to request a prescription for a drug that can be used to end his or her life. Participation in the law is entirely voluntary for physicians, patients, pharmacists and others. Patients and physicians who choose to participate must carefully follow the steps set forth in the law in order for their actions to be considered lawful and appropriate.

The purpose of this writing is not to take a position, either in favor of the Act or against the Act.  The sole purpose is to objectively explain the California End of Life Option Act law (the “Act”) that was signed October 5, 2015, and became operative on June 9, 2016.

California’s new End of Life Option Act allows terminally ill patients to obtain a prescription from their attending physician for medication to end their life. The patient then administers the medication themselves.

To be eligible for medical aid in dying under California’s law, an individual must be:

  • An adult: a person 18 years of age and older;
  • Terminally ill: an incurable and irreversible disease that has been medically confirmed and is expected to result in death within six months; and
  • Mentally capable of making their own healthcare decisions.
  • Further, to be eligible, an individual must also be
  • A resident of California;
  • Acting voluntarily;
  • Making an informed decision that includes being given information about all other end-of-life options;
  • Informed that they may choose to obtain the aid-in-dying prescription but not take the medication; and
  • Capable of self-administering and ingesting the aid-in-dying medication.

In addition to the requirements listed above, certain steps must be followed in order for a person to qualify for aid-in-dying medication. It is estimated that the average length of time between requesting and receiving a prescription will between 15 days and three months and requires at least two doctor visits.

Two California physicians must agree that a person is eligible to use the Act. One physician prescribes the medication, and the other physician gives the consulting opinion.

If either physician is unable to determine a persons’ mental capacity in making the request, a mental health professional (psychiatrist or psychologist) must evaluate the person to ensure that the person is capable of making his or her own healthcare decisions.

The Act sets forth steps that both the patient and his or her physician must follow.

The following is a summary of the key steps and is not intended to be a complete restatement of the Act.

  • The patient must consult with his or her attending physician (the physician who has primary responsibility for the patient’s healthcare and treatment of the terminal illness) who must determine if the illness is terminal, meaning that the patient cannot be cured or the illness reversed and that death will likely result within six months, and that the patient has capacity to make medical decisions.
  • The patient must make two oral requests, at least 15 days apart, to the attending physician, as well as one written request. This written request must be on a form as set out in the Act. The written request must be witnessed by two persons (one of whom must be a non-relative of the patient) and signed by the patient. The patient must discuss the request with his or her physician with no one else present (except an interpreter, if necessary) to be certain that the request is voluntary.
  • The patient must then be seen by a second physician (a consulting physician) for that physician to confirm the patient’s diagnosis, prognosis, and ability to make medical decisions. If either physician questions the patient’s mental condition, the patient must then be seen by a mental health specialist to confirm that the patient has the capacity to make medical decisions.

The patient and the physician must discuss each of the following:

  • The aid-in-dying drug, how it will affect the patient and the fact that death might not be immediate.
  • Realistic alternatives to the aid-in-dying drug, including comfort care, hospice care, palliative care, and pain control.
  • Whether the patient wants to withdraw the request.
  • Whether the patient will notify next of kin, have someone else present when taking the drug, or participate in a hospice program, although the patient is not required to do any of the three things.
  • Ensure the patient knows that he or she does not have to take the drug, even though they have filled the prescription.
  •  Once all of the above have occurred, if the patient still wishes, the physician can write a prescription for the drug.
  • Before taking the drug, the patient must sign a form as set out in the Act, that states that the drug is being taken voluntarily. The patient must take the drug himself or herself.  While others may assist in preparing the medication, the patient must self-administer the drug.
  • The participation of the physician is absolutely voluntary, as is that of the patient.
  • Lethal injection, mercy killing, or active euthanasia remain a crime in California.

How does the Act affect the patient’s insurance, will, or other contracts?

The Act protects patients in that they cannot be denied life or health insurance or annuities based on requesting or taking an aid-in-dying drug. A health insurer cannot tell a patient an aid-in dying drug is covered by insurance unless the patient asks.

A health insurer cannot refuse treatment for the illness at the same time that it offers coverage for aid in dying. A will, a contract, or other agreement cannot require a patient to receive aid in dying or prevent a patient from doing so.

For additional information, please refer to the Act, Senate Bill 128/Health and Safety Code Section 443 et. seq. or contact the author.

 

 

 

Can a third party pay a client’s fees?

In certain situations, attorneys may be asked to allow a third party to pay

There are various situations that may arise where an attorney may be asked to allow a third party to pay a client’s attorney’s fees.  Examples include a parent paying for a criminal defense attorney or a divorce attorney for a child.  When a third party is paying the bills it is particularly important to comply with the applicable rules and not to confuse the client with the person paying the bills or to include the third party in confidential client communications.

Rule 3-310(F) provides that an attorney may not accept payment for representing a client from anybody other than the client unless the attorney complies with certain requirements.

No interference is allowed

First, there must be no interference with the attorney’s independent professional judgment or with the attorney-client relationship.  This means that just because a person is paying the bills she doesn’t get to direct the representation.

Confidentiality must be maintained

Second, you must strictly maintain the client’s confidential information as required under Business and Professions Code section 6068, subdivision (e).  Often a person paying the bill, particularly a parent or other close relative who is genuinely interested in helping the client, will want to be informed about what is going on in the case and offer input on the attorney’s strategy.  Also, they may want details about what services they are paying for.

However, just like in any other matter, unless the client specifically authorizes the attorney to discuss confidential or privileged information, the attorney cannot disclose anything to the third party.  An attorney should also be careful to make sure the client doesn’t feel obligated to share confidential information with the third party simply because that person is paying the bills.

Written consent is required

Third, the attorney must obtain the written consent of the client before the attorney may accept payment from a third party.  A good practice is to discuss payment terms directly in the engagement agreement and confirm that though a third party will be paying the bills, she shall have no authority to direct the representation or have access to confidential client information or privileged communications.

The attorney will also want to have the third party sign an agreement to confirm responsibility to pay the client’s bills.  The attorney should consider whether to have the third party sign the same engagement agreement as the client or to enter into a separate agreement with the third party.  In order to preserve any privilege as to the client’s engagement agreement, the attorney should do a separate agreement with the third party.  The agreement should also confirm that the payor is not the client, shall have no authority to direct the representation or have access to confidential client information and privileged communications.

A related issue is who is entitled to a refund of any funds remaining at the conclusion of representation, the client or the person who paid?  COPRAC Formal Opinion 2013-187 addressed this question and concluded that the attorney must return the balance to the third-party payor rather than the client, unless the engagement agreement with the client provides otherwise.  Accordingly, the attorney should also clarify return of funds in the client engagement agreement.