24.2 Individuals and Their Successors

• Library: The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia CLE) (2013 Ed.)

24.2 INDIVIDUALS AND THEIR SUCCESSORS

24.201 Introduction. Not surprisingly, individual clients who own the privilege may waive it.

There are only a few side issues worth addressing. First, in keeping with the standard rule that a client's subjective belief about the privilege's applicability does not control, ³ one court held that a client can waive the privilege by disclosing privileged communications outside the lawyer's presence. ⁴ In that case, a client and his lawyer decided that the lawyer would not attend the clients' deposition. The court explained that "[h]aving taken that risk, [the client] cannot now claim waiver was due only to a lack of legal counsel." ⁵

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Second, a client employing multiple lawyers can explicitly waive the privilege covering communications with one lawyer, while maintaining the privilege as to communications with the other lawyers. ⁶

Third, one court explained that a client representing himself pro se can essentially forfeit the privilege under the same standards used to judge disclosure by a client represented by a lawyer. ⁷ This conclusion seems like surplusage, because most courts hold that clients representing themselves pro se cannot engage in privileged communications (as explained in Chapter 9 of this book).

24.202 Bankrupt Individuals. Courts take different positions on ownership of an individual's privilege after the individual declares bankruptcy. This contrasts with the universal rule that a corporation's bankruptcy passes control of the privilege to the trustee or other individual empowered to act for the bankrupt company. This is discussed in Chapter 6 of this book.

The Western District of Texas discussed this debate in a 2010 decision.

Courts have adopted three distinct approaches to the problem of whether a trustee can waive an individual debtor's attorney-client privilege. According to the first approach, the right to waive the attorney-client privilege of an individual debtor passes to the bankruptcy trustee by operation of law. . . . Under the second, a trustee may not waive an individual debtor's attorney-client privilege. . . . Finally, some courts have applied a functional approach which balances the equities and weighs the trustee's need for the information against the harm disclosure would cause to the debtor. . . . This Court finds that the best approach is the one that denies a trustee the right to waive an individual debtor's attorney-client privilege. ⁸

Other courts have also recognized these three choices. ⁹ Courts taking one of the first two positions generally do not need a detailed factual analysis. For instance, in 2011 the District of Nebraska held that a Chapter 7 bankruptcy trustee does not have power to waive an individual's privilege or work product protection. ¹⁰ In contrast,

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courts adopting the third fact-intensive analysis generally must balance various interests. ¹¹

24.203 Deceased Individuals' Successors. Absent unusual circumstances, a deceased client's legal successor, usually an executor, owns the privilege and therefore may waive it. ¹² For instance, one court allowed a deceased client's executor to waive the privilege so she could pursue a malpractice action against the decedent's lawyer. ¹³ Many states' statutes specifically provide that a deceased client's executor owns the privilege. ¹⁴

In states that do not explicitly give the executor control of the privilege, interesting situations can develop if the executor wants to waive the privilege but does not have the statutory authority to do so. For instance, in one celebrated case, a scientist died after drinking arsenic-laced beer given to him at a bowling alley by his wife's co-worker. ¹⁵ The police soon discovered that the scientist's wife and her co-worker had been romantically involved. The co-worker consulted with a lawyer and then killed himself. The North Carolina Supreme Court wrestled with the prosecutor's efforts to discover communications between the now-deceased co-worker and his lawyer. One might wonder why the deceased co-worker's wife, who was his legal successor, did not waive the privilege. After all, she had also been cheated on by her husband and presumably would want to assist in the effort to prosecute her late husband's paramour. The court answered this question by explaining that North Carolina law did not explicitly provide that a deceased client's successor can waive the privilege.

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Interestingly, the Restatement explains that "the privilege perhaps lapses after the estate is wound up and the personal representative has no further power or responsibility to act in behalf of the estate." ¹⁶

24.204 Adversity Between Successors and the Deceased Individual. Not surprisingly, a deceased individual's personal representative generally cannot waive the individual's privilege if the disclosure would harm either the estate or the deceased client's interests. For instance, in 2011 the Eighth Circuit held that a deceased wife's husband acting as administrator of her estate...