Does Your Attorney-Client Privilege In California Continue After Death?

June 14, 2007 by Mitchell A. Port

The California legislature recently held a hearing on the question of whether the attorney-client privilege should continue indefinitely after a client's death. The hearing further asked whether a means for waiving the privilege should be created when subsequent administration of the estate is necessary.

In judicial and other proceedings when an attorney is called as a witness or otherwise required to produce evidence related to a client, the attorney-client privilege applies to shield the attorney from providing the evidence.

The privilege enables a client to prevent a witness from disclosing confidential communications between the client and his or her attorney. It encourages the client to fully disclose information to assist the attorney in the lawyer’s representation of the client. Under current law, the privilege remains effective until the end of the probate of the deceased client's estate and the personal representative was discharged by the court.

The bill provides that the attorney-client privilege continues indefinitely after the client's death and creates a mechanism for waiving the privilege when a lawyer is instructed by the holder of the privilege to do so.

This bill also authorizes the court to appoint a personal representative for purposes of holding the attorney-client privilege where the court has discharged a personal representative and disclosure is sought as to a privileged communication. Under this bill a lawyer will be obligated to claim the attorney-client privilege, even if the client is dead, whenever the lawyer is present when the communication is sought to be disclosed.

This bill will also allow waiver of the privilege if the attorney is instructed to do that by the holder of the privilege.

Litigation in the Bing Crosby estate has weakened the assumption that the privilege could be abandoned after a deceased client's personal representative has been discharged without harming the societal goals embodied by the attorney-client privilege.

Upon Bing Crosby's death, there was a probate of his assets, including his recording contracts. During the probate case, HLC Properties, Ltd. was created which received Crosby's assets, including the recording contracts, on his estate's distribution. His widow was the personal representative and the court then discharged her. HLC later sued MCA, a record company, for unpaid royalties. MCA requested and the trial court ordered HLC to turn over documents containing Crosby's past communications with his attorneys.

In HLC Properties, Ltd. v. Superior Court, the California Supreme Court upheld the trial court. Since the attorney-client privilege is governed exclusively by statute, the court did not consider whether the assumptions behind the statutory rule ending the attorney-client privilege on the discharge of a client's personal representative remain valid. (HLC Properties Ltd. v. Superior Court, 105 P.3d 560 (Cal. 2005).)

If Bing Crosby had created a revocable trust to avoid probate and to pass his royalties at his death, his successor trustee would have been able to claim the privilege. If he incorporated his business during life, his corporation would have been able to claim the privilege.

The bill before the California legislature concludes that the continuance of the attorney-client privilege after a client's death should not be decided on minute and picky distinctions that are unrelated to the purposes from which the privilege originates, such as whether the decedent passed property at death by either a revocable trust or a will.