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Questions About Attorney-Client Privilege Regarding Deceased Parties

  1. Does the attorney-client privilege disappear when the client does? (I seem to recall it remains).
  2. Does the executor of the deceased’s estate “inherit” the privilege?

Generally, the Executor succeeds to and receives A/C privilege of the deceased person; in other words, it is the Executor’s privilege to assert:

T.R.C.E., Rule 503(c)(3): The privilege may be claimed by a deceased client’s personal representative (“PR”).

For your reference, T.R.C.E. stands for the Texas Rules of Civil Evidence.

2. (Cont’d) 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

If you are representing a Party to a lawsuit for a personal injury or some other tort and the Party dies, then the privilege you possessed with the Party continues and would pass to the Executor of the Decedent’s Estate. 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

If you get into a lawsuit – POST-DEATH – over the validity of a that Decedent’s Will or Trust a JTWROS Agreement or something that nature, then the A/C privilege with the Decedent and his attorney in relation to such documents would not apply, based upon the exception. Absolutely discoverable!

Scenario: Lawsuit Over the Validity of a Contract

However, if you are in a lawsuit over the validity or enforceability of a contract at the time of decedent’s death, then you have more of a gray area; possibly a hybrid situation. To invoke the exception, the question is: What does “claiming through the same decedent” mean? As Plaintiff, I would argue that the decedent’s lawyer’s entire file is discoverable because the end result of the fight is a claim through the same decedent; the Party and the Estate are fighting over the contract. More accurately though, the communications between the decedent and his/her attorney regarding the contract creation, its meaning, and interpretation, i.e., the ultimate issue, in that case, would be subject to discovery. But, the communications between the attorney and the deceased party in relation to the representation in that lawsuit pending at the time of death would be less certain.

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.

By: Kevin Spencer

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