Attorney-client privilege is the time-honored and unbreakable bond between a lawyer and the person being represented. As long as you don’t articulate your intention to do someone else any bodily harm, your lawyer cannot repeat any information you provide to his or her firm. This rule is paramount when solidifying a good defense, especially when prosecutors are trained to attack that defense from any and all angles. The attorney-client privilege is often thought unbreakable–but there are important exceptions.
As it turns out, there are certain scenarios in estate planning litigation that might grant an attorney the means to break the attorney-client privilege. Remember that estate planning is one dealing with monies and assets transferred from the deceased to the living (and Uncle Sam, of course), but even so, lawyers are still bound to keep secret any information provided by the deceased.
This is true in most cases, anyway. One exception occurs when communications by the deceased client are relevant to ongoing litigation claims made by parties through that client. To clarify: the litigation cannot be effected against the deceased, only through the deceased. Although one would think this issue might arise more often in court, there is surprisingly little precedent during which it was invoked.
Therefore, an estate planning lawyer might have a little bit of room when situations develop that require he or she interpret the law. In Fletcher v. Superior Court, a petition was filed against a decedent’s still-living sister. The reason this law was applicable was simple: the sister and deceased shared an estate planning lawyer who helped the two communicate regarding legal matters while the decedent was still alive. Those who filed the petition wanted to use the law in order to divulge the communications of the sister and her lawyer, but the court ruled that the law referred only to those communications shared between the lawyer and the deceased. In other words, the petitioners did not get their way. Whoops.
The idea behind this law is not complicated in practice. If communications between an estate planning lawyer and a deceased client could help shed light on the desires of the deceased to carry out his or her last will and testament, then those communications can legally be shared. After all, why would a family member or friend who left you an inheritance want to make who gets what part of it even more complicated than it already is?
This is the reasoning why communications between attorney and client remain barred from anyone seeking litigation against the deceased client or his or her estate. If you make a claim to that estate or seek to nullify a trustee’s claim to that estate, then rest assured that communications between the deceased and his estate planning lawyer remain barred to you forever. There is no way to legally compel those records into the light of day.
Although these scenarios are rare and the laws involved are even more rarely invoked, the rules involved are clear enough. What is not always clear is the intentions of the deceased or the intentions of his or her loved ones. Sometimes, the competence of the deceased is called into question. In these circumstances, even laws clearly were written can be difficult to follow. Luckily, there are lawyers to handle that!