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The Attorney-Client Privilege in Trust & Estate Litigation

December 26, 2011

Generally, when someone hires a lawyer, anything they say and write to that lawyer is confidential and protected from disclosure to the outside world. This concept is referred to as the attorney-client privilege. The attorney-client privilege is designed to facilitate candid communication between client and lawyer, thereby aiding the lawyer in providing the client with the best advice possible under the circumstances. The courts consider honoring and enforcing the attorney-client privilege to be of paramount importance. However, in the context of trust, estate, conservatorship, or other “fiduciary” litigation, the sanctity of the privilege can be jeopardized.

The attorney-client privilege can only be raised by the “holder of the privilege.” The holder of the privilege is usually the client, but this changes if the client becomes incapacitated or deceased. For example, if a client is incapacitated, and a court has appointed a conservator for the client, then the conservator is the holder of the privilege. If a client is deceased, then the successor-in-interest (such as a trustee or executor) is the holder of the privilege. In this way, the client’s fiduciary succeeds to the attorney-client privilege previously held by the client.

Additionally, when a fiduciary (such as a conservator, personal representative, or trustee) hires an attorney, the privilege belongs to the office of the fiduciary rather than the person serving as the fiduciary. Thus, if the fiduciary is removed or resigns, the new fiduciary becomes the holder of the privilege, and effectively succeeds to the attorney-client privilege previously held by the prior fiduciary.

It is easy to see how, over the course of protracted fiduciary litigation, communications with your lawyer that you believed were confidential at the time they were made might be subject to disclosure at a later time. Accordingly, it is especially important for attorneys and clients involved in fiduciary litigation to keep attorney-client privilege issues in mind when they begin their relationship. Clients in these cases should (obviously) still speak honestly and candidly with their lawyer, but should exercise discretion to direct those communications to matters at issue before the court.

Fiduciaries should be aware that a lengthy, emotionally-driven, “venting” e-mail filled with inflammatory comments that is sent to a lawyer today could come back to haunt them tomorrow.


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