Land of Confusion: Attorney-client Privilege and Duty of Confidentiality in Guardianships and Conservatorships

• Publication year: 2017
• Author: By Nicholas J. Van Brunt, Esq. and John D. Rees III, Esq

LAND OF CONFUSION: ATTORNEY-CLIENT PRIVILEGE AND DUTY OF CONFIDENTIALITY IN GUARDIANSHIPS AND CONSERVATORSHIPS

By Nicholas J. Van Brunt, Esq.^* and John D. Rees III, Esq^*

I. INTRODUCTION

The attorney-client privilege "has been a hallmark of Anglo-American jurisprudence for almost 400 years."¹ It is axiomatic that "[t]he fundamental purpose of the attorney-client privilege is the preservation of the confidential relationship between attorney and client."² Indeed, this purpose is fundamental insofar as "it encourages the client to make complete disclosure to his or her attorney of all facts, favorable or unfavorable, without fear that others may be informed."³

In corollary fashion, the duty to maintain the confidences of a client is also fundamental. The California Legislature has mandated that an attorney is charged with the duty "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,"⁴ unless "necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual."⁵ Together, an attorney's duties to not reveal privileged information or client confidences foster candid, thorough discussions between those seeking legal advice and those providing it.

While practitioners need always be concerned with issues of privilege and confidentiality not every representation is cookie-cutter, nor is every answer to a question as to the application of the rules on privilege or confidentiality (and the interaction between the two) simple. Attorneys engaged in the practice of trusts and estates law in California know that the correct response to the query "are you my client?" is not always intuitive.

For example, it is not the trustee personally who holds the attorney-client privilege with counsel for the trust, but rather the office of the trustee.⁶ Accordingly, a successor trustee accedes to the attorney-client privilege from the predecessor trustee "upon the successor's assumption of the office of trustee," meaning that, at that moment, those formerly inviolate "confidential communications a predecessor trustee has had with its attorney on matters concerning trust administration passes from the predecessor trustee to the successor."⁷

These issues become no less complicated when attorneys are engaged in guardianship or conservatorship proceedings. The legal thicket through which guardians and conservators must navigate both for themselves and their charges is often sufficiently opaque as to render self-representation inadvisable. Therefore, attorneys play a critical role in guardianships and conservatorships in California. Indeed, both California's Handbook for Conservators⁸ and Guardianship Pamphlet⁹ provided by the courts recommend that fiduciaries seek legal advice in numerous instances.

However, the courts may also appoint counsel for "a ward, a proposed ward, a conservatee, or a proposed conservatee in any [guardianship, conservatorship, or other protective proceeding]" if that person is not otherwise represented by counsel and the appointment (1) would be helpful to the resolution of the matter, or (2) is necessary to protect the person's interests.¹⁰ Indeed, regardless of whether the conservatee has legal capacity to act, the court is required to appoint either "the public defender or private counsel to represent the interest of [that] person"¹¹ in proceedings to establish or transfer a conservatorship,¹² to appoint a proposed conservator,¹³ to terminate a conservatorship,¹⁴ to remove a conservator,¹⁵ to enter an order affecting the legal capacity of the conservatee,¹⁶ or to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee's place of residence.¹⁷ Similarly, the court "may, on its own motion or on request of a personal representative, guardian, conservator, trustee, or other interested person, appoint a guardian ad litem at any stage of a proceeding . . . to represent the interest of any of the following persons, if the court determines that representation of the interest otherwise would be inadequate:"¹⁸ "[a] minor,"¹⁹ "[a]n incapacitated person,"²⁰ "[a]n unborn person,"²¹ "[a]n unascertained person,"²² "[a] person whose identity or address is unknown,"²³ or "a designated class of persons who are not ascertained or are not in being."²⁴

But while it is clear that conservatees/wards and their fiduciary counterparts are generally entitled and encouraged (and, in some cases, required) to have counsel, other issues are less clear. To wit: how are attorney-client privilege rules applied in guardianship/conservatorship proceedings, particularly where the client is either a fiduciary or a person who may not have decisional or functional capacity? While a discussion of that subject could fill far more space than available in this article, this article will address some scenarios where those questions arise.

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This article first outlines attorney-client privilege and confidentiality rules for attorneys generally. Next, it examines several scenarios in which attorneys in guardianship and conservatorship cases face novel challenges with respect to privilege and confidentiality. Finally, it proposes some guidelines (as well as no-fly zones) to assist attorneys for conservatees, wards, and their fiduciary counterparts in navigating these challenges. Because even where such an attorney genuinely believes he or she is doing the right thing, a misstep with respect to privilege or confidentiality can pave the wrong path.

II. DISCUSSION

A. Basics of the Attorney-Client Privilege in California

In California, a client "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by"²⁵ the "holder of the privilege,"²⁶ "[a] person who is authorized to claim the privilege by the holder of the privilege,"²⁷ or the "lawyer at the time of the confidential communication" (though that lawyer may not claim the privilege if there is no longer a holder of the privilege or if he or she is otherwise instructed by a person authorized to permit disclosure to do so).²⁸ For these purposes, a "lawyer" means "a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation."²⁹ "Where a person consults an attorney with a view to employing him professionally," formal retention of the attorney is not required for the privilege to attach to "any information acquired by the attorney in the course of interviews or negotiations looking toward such employment . . . even though no actual employment of the attorney as such follows."³⁰

Meanwhile, a "client" means a person "who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity."³¹ When it comes to guardianships or conservatorships, this definition "includes an incompetent [person] who himself [or herself] so consults the lawyer"³² or a "guardian or conservator [who] consults the lawyer [on] behalf of the incompetent."³³ "Confidential communications" subject to the privilege include those between a lawyer and a client (or a person who is "present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted").³⁴

Subject to certain exceptions, a client waives the privilege if he or she "disclose[s] a significant part of the communication or has consented to disclosure."³⁵ However, there are exceptions to the waiver section, including (i) joint representations (where one joint holder cannot waive the right of another joint holder to claim the privilege);³⁶ (ii) disclosures that themselves are privileged;³⁷ and (iii) disclosures in confidence of a communication that is otherwise protected by a privilege such as the physician-patient privilege or the psychotherapist-patient privilege.³⁸

One major difference in the guardianship/conservatorship context is that, where a client is incompetent, it is the guardian or conservator ? not the client ? who may invoke or waive the attorney-client privilege.³⁹ And, where a guardian/conservator consults an attorney on behalf of an incompetent client, those statements also come under the privilege's aegis.⁴⁰

B. Communications Between a Guardian Ad Litem and a Ward Made in Furtherance of the Attorney-Client Relationship are Privileged

Though a guardian ad litem is imbued with certain rights, such that a guardian ad litem stands in the shoes of the ward, the guardian ad litem is not the real party in interest to the action "any more than the incompetent person's attorney of record is a party."⁴¹ A guardian ad litem "is not a party to an action, but merely the representative of record of a party."⁴² For this reason, a guardian ad litem may not repudiate a settlement favorable to a ward without court approval,⁴³ nor may a guardian ad litem simply waive a ward's fundamental rights, such as a right to a jury trial, over the ward's objection.⁴⁴ But courts have acknowledged that a guardian ad litem may, in some instances, be subsumed within the meaning of the word "party." For instance, a guardian ad litem is required to respond to (and verify the accuracy of) discovery requests propounded on an incompetent person.⁴⁵ While it may not be a terribly useful bright-line standard for the practitioner to apply in close calls, the jurisprudence in this state tends to demonstrate "a guardian ad litem's role is more than an attorney's but less than a party's."⁴⁶

The good news is the law is well settled when a guardian ad litem is appointed to represent a minor's interests in litigation. That guardian ad litem's communications with the minor, which are obtained for the purpose of the...