Dead Man Talking: Is There Life After Death for the Attorney-client Privilege?
| Jurisdiction | California,United States |
| Author | By William R. Burford and Terence S. Nunan |
| Publication year | 2005 |
| Citation | Vol. 11 No. 2 |
By William R. Burford and Terence S. Nunan
On Valentine's Day 2005, the Supreme Court of California delivered a small surprise to some members of the bar. In HLC Properties, Ltd. v. Superior Court,1 a royalties disputes involving the recordings by the late Harry Lillis (Bing) Crosby, the court ruled that, under §§ 953 and 954 of the California Evidence Code, the attorney-client privilege was extinguished upon the discharge of Crosby's executor in 1981 and consequently that dozens of decades-old written communications to and from Crosby's lawyers were subject to disclosure.
Most probate lawyers are already aware that a personal representative is entitled to claim or waive the attorney-client privilege on behalf of a decedent and are familiar with various exceptions to the privilege recognized when a decedent's testamentary intentions are placed at issue. Some (thoroughly nonscientific) polling suggests, however, that few practitioners understand the attorney-client privilege to vanish entirely upon the discharge of an executor or estate administrator, and fewer still have ever considered the impact post-death probate procedures and pre-death planning can have on the viability of the attorney-client privilege after a client's death.
This article contrasts the California and common law rules governing the posthumous application of the attorney-client privilege, identifies some of the ambiguities and uncertainties created by the "personal representative" rule adopted in Evidence Code §§ 953 and 954, and reviews various means for maintaining - or even reviving - the privilege after the death of a client.
A. The Common Law
The attorney-client privilege "is the oldest of the privileges for confidential communications known to the common law"2 and "has been a hallmark of Anglo-American jurisprudence for almost 400 years."3 "While it is perhaps somewhat of a hyperbole to refer to the attorney-client privilege as 'sacred,' it is clearly one which our judicial system has carefully safeguarded with only a few specific exceptions."4
The purpose of the attorney-client privilege is to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."5 The privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."6
The protections provided by the attorney-client privilege have been described as "absolute" and are generally recognized "without regard to relevance, necessity or any particular circumstances peculiar to the case."7 Although application of the privilege may result in the suppression of important information, "the privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence."8
B. California Evidence Code
The laws governing the attorney-client privilege in California are set forth in Evidence Code §§ 950-962 and follow the so-called "modern" trend, under which privilege claims are not automatically recognized but must be asserted by a party entitled to do so.9
Evidence Code § 954 provides, in pertinent part, that a client possesses a privilege to refuse to disclose or to prevent another from disclosing a confidential attorney-client communication when such privilege is claimed by (a) the "holder of the privilege," (b) a person "authorized to claim the privilege by the holder of the privilege," or (c) the lawyer who received the confidential communication, except when "there is no holder of the privilege in existence."10 Section 954(c) appears unique in expressly prohibiting an attorney from claiming the privilege if there is no holder of the privilege in existence.11
Evidence Code § 953(c) states that when a client is deceased, the holder of the attorney-client privilege is the decedent's "personal representative," i.e., the executor or administrator of the client's estate. At the same time, the law also recognizes several "testamentary" exceptions to the attorney-client privilege after a client's death. For example, Evidence Code § 957 provides that there is no privilege with respect to confidential communications between a lawyer and a deceased client when the communication is relevant to a dispute between parties who claim through a deceased client. The Evidence Code also recognizes exceptions to the privilege when an issue exists as to a decedent's intentions or competence in executing a document, the circumstances surrounding the execution of a document, or the validity of a document purporting to affect an interest in property.12
The enactment of the California Evidence Code in 1965 was one of the first comprehensive codifications of the law of the evidence
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and has been characterized as a significant legislative achievement. "Through its enactment, California replaced an incomplete, inconsistent, and confusing body of statutory and case law with a comprehensive statute." The statutory foundation of the rules of privilege in California restricts the traditional role of the courts. "The privileges set out in the Evidence Code are legislative creations; the courts of this state have no power to expand them or to recognize implied exceptions."14
A. Swidler & Berlin v. United States
It may come as a bit of a surprise to learn that, outside of testamentary disputes, the courts have had relatively few occasions to address the scope and availability of the attorney-client privilege after the death of a client. In Swidler & Berlin v. United States,15 a 1998 decision, the United States Supreme Court was provided such an opportunity.
Swidler & Berlin involved a request by Independent Counsel Kenneth Starr for recognition of a limited exception to the attorney-client privilege in the context of a pending criminal investigation. At issue were notes made by James Hamilton, an attorney for Vincent Foster, who was then Deputy White House Counsel, during a two-hour meeting between Hamilton and Foster shortly before Foster's death in 1993. As part of an investigation of the dismissal of employees of the White House Travel Office, the so-called "Travelgate" investigation, a grand jury (at the request of Starr's office) issued subpoenas for the production of handwritten notes taken by Hamilton during his meeting with Foster. Hamilton and his law firm, Swidler & Berlin, moved to quash the subpoenas.
The District Court reviewed the notes in camera and granted the motion to quash. The Court of Appeals reversed, holding that the District Court should have weighed the importance of the communications to the pending criminal investigation against the decedent's interests in shielding the notes from disclosure. The Supreme Court then reversed the ruling of the Court of Appeals, holding that the attorney-client privilege survived Foster's death and protected his attorney's notes from disclosure and rejecting the use of a balancing test to determine the applicability of the privilege.
Chief Justice Rehnquist, writing for a six-member majority, identified the issue presented - broadly but simply - as "the extent to which the privilege survives the death of the client."16 In the course of reviewing the existing case law on the issue, the court acknowledged that while previous rulings have "most often involv[ed] the testamentary exception" to the privilege, the cases "uniformly presume the privilege survives, even if they do not so hold."17 Finding in the "great body of this case law" a presumption that the privilege remains in force after a client's death, the court declared that "at the very least the burden is on the Independent Counsel to show that 'reason and experience' require a departure from this rule."18
The Independent Counsel relied on the routine admission of confidential communications on testamentary issues, along with the absence of financial harm to a deceased client's estate, to argue for the recognition of an exception to the attorney-client privilege where confidential communications are shown to be of substantial importance to a pending criminal investigation.19 The Independent Counsel asserted that the creation of such a limited exception would not adversely affect a client's willingness to disclose sensitive matters to legal counsel, a position bolstered by scholarly and other criticisms of the posthumous application of the attorney-client privilege.20
The majority disagreed and dismissed these arguments as "at odds with the goals of full and frank communication and of protecting the client's interests."21 The court noted that clients consult attorneys "for a wide variety of reasons" and that attorneys are often called on to act "as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice."22 In light of the legitimate concerns a client may have for matters of reputation and for harms that might befall friends or family members after death, "[p]osthumous disclosure of communications may be as feared as disclosure during the client's lifetime."23 Accordingly, the open communication upon which the privilege is founded would be encouraged only if a client knows that the matters discussed will remain confidential even after death.
The court recognized that the Independent Counsel's arguments were "by no means frivolous," but at the same time found "weighty reasons that counsel in favor of posthumous application" of the...
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