Does Attorney Client Privilege Survive Death
- Does the attorney-client privilege disappear when the client does? (I seem to recall it remains).
- Does the executor of the deceased’s estate “inherit” the privilege?
T.R.C.E., Rule 503(c)(3): The privilege may be claimed by a deceased client’s personal representative (“PR”).
In other words, may the deceased’s former lawyer reveal communications between himself and the deceased?
However, if the Parties claim under the same decedent, as in a will contest or a trust fight or a declaratory judgment action to set aside a deed or a contract or a transaction, etc. an exception applies:
T.R.C.E., Rule 503(d)(2): The privilege does not apply: If the communication is relevant to an issue between parties claiming through the same deceased client.
We use the latter rule to obtain the files of attorneys all the time; particularly, in will contests. When we file a will contest or a trust contest, the first thing we do is subpoena the scrivener’s file.
Huie v. DeShazo does not apply to answer your question because it establishes that a serving fiduciary possesses an A/C privilege with his/her/its attorney in relation to the representation of that fiduciary during the administration or litigation and prevents disclosure to the fiduciary’s beneficiaries. It is not a case establishing that a privilege of a decedent carries over to the PR
To bear down on your question, here are some scenarios:
Scenario: Representing a Party to a Lawsuit
You and the Executor can assert and must preserve that privilege, as it may affect the progression of your personal injury lawsuit and, because the Parties are not claiming through the same decedent, there is no exception.
Scenario: Post-Death Lawsuit
Scenario: Lawsuit Over the Validity of a Contract
I think it is a tenable argument for the attorney and executor to argue that the communications regarding representation in the lawsuit (not the negotiation of the contract) was NOT part of the underlying ultimate issue, i.e., the creation, validity, and enforceability of the contract. So, if it is the same attorney, then part of the attorneys’ files may be discoverable and part of that attorneys’ files may not be discoverable. This is only a question if the same attorney represented that Party in the contract negotiation and the contract litigation. If the Party had separate attorneys for each of the latter, then the negotiation attorneys’ files would be discoverable and the litigation attorneys’ files would not – IMHO.
When you are not sure how a death can affect your legal rights, contact the experienced probate lawyers at Spencer & Johnson.