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.