Moneyh & the Law: Client death does not automatically end solicitor-client privilege | Business
Recently (about a novel I’m writing), I wanted to know the answer to this question: “Does attorney-client privilege survive the death of a client?”
You would think that would allow a simple yes / no answer. But like most legal things, it isn’t. So let me share some of what I learned.
To begin with, attorney-client privilege protects against compelled disclosure “of communications between a client and a lawyer for the purpose of obtaining legal advice, whether such advice relates to a dispute, transaction or other legal service.” The purpose of attorney-client privilege is “to encourage clients to confide in their lawyers.” And, “knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with their lawyer.”
In accordance with attorney-client privilege, a lawyer, under the rules of professional liability, has an ethical duty not to disclose communications protected by the privilege. Therefore, if a lawyer receives a subpoena requesting information about communications with a client, the lawyer (now firmly between a rock and a hard place) must, unless the client has waived the privilege, challenge the assignment.
But what if a personal representative of the deceased client believes they need protected and confidential information from that client’s lawyer in order to fulfill their duty to administer the client’s estate? Here’s how it works. First, the personal representative does not step into the shoes of the deceased client and thereby acquires ownership of the attorney-client privilege. The ownership of the attorney-client privilege remains with the deceased client, and a lawyer cannot simply hand over to a personal representative any files or other information that the representative might request. But, the personal representative can successfully argue that the deceased client, by appointing them to administer the estate, has implicitly waived attorney-client privilege to the extent that the personal representative needs the information necessary to administer the estate. Even then, a lawyer cannot simply hand over all of the client’s records to the personal representative or otherwise disclose the communications the lawyer has had with the client. The lawyer must determine what information the personal representative actually needs to administer the estate. As with everything else, the lawyer must say, “No. Sorry. You can’t have this.
Another interesting twist on this is that the records of a deceased client do not belong to the client and thus become part of the estate, controlled by the personal representative. Instead, with the exception of items in a file of intrinsic value like, say, share certificates or promissory notes, the files regarding the deceased client belong to the lawyer. And, even if the lawyer was willing to hand over his files to someone who requests it, the lawyer must continue to abide by the ethical prohibition on disclosing client communications in the absence of a client waiver. deceased.
OK, is there a lesson here? May be. It seems logical (at least to me) that in your will you state what information you want your lawyer to provide to your personal representative, i.e. a full or limited waiver of solicitor-client privilege. . . Or, in your will, you should say that you are not waiving attorney-client privilege and expect your lawyer to enforce it.
Jim Flynn works for Flynn & Wright LLC of Colorado Springs. Email him at [email protected]
Jim Flynn works for Flynn & Wright, LLC in Colorado Springs. Contact him at [email protected]