Lately (in relationship with a novel I’m producing), I needed to know the respond to to this concern: “Does the legal professional-consumer privilege endure a client’s death?”
You would imagine this would enable for a basic sure/no answer. But like most points authorized, that is not the scenario. So allow me share some of what I have learned.
To get started, the lawyer-customer privilege shields from compelled disclosure “communications among a client and an attorney for applications of acquiring authorized information no matter if that advice pertains to litigation, a transaction, or any other authorized service.” The function of the lawyer-consumer privilege is to “encourage purchasers to confide in their lawyers.” And, “knowing that communications will keep on being confidential even right after demise encourages the client to converse absolutely and frankly with counsel.”
Consistent with the lawyer-client privilege, a lawyer, as section of the Regulations of Expert Accountability, has an ethical responsibility not to disclose communications protected by the privilege. As a result, if a attorney gets a subpoena requesting info about communications with a customer, the law firm (now firmly amongst a rock and a really hard area) need to, except the shopper has waived the privilege, problem the subpoena.
But what if a particular representative for the deceased shopper thinks he or she requires secured and confidential data from that client’s law firm in buy to carry out the private representative’s duty to administer the client’s estate? Here’s how that sorts out. Initially, the private agent does not transfer into the sneakers of the deceased client and thereby acquire ownership of the legal professional-shopper privilege. Possession of the lawyer-customer privilege remains with the deceased customer and a law firm can not just hand over to a own agent regardless of what data files or other data the consultant could possibly ask for. But, the particular agent can properly argue that the deceased consumer, by appointing him or her to administer the estate, has impliedly waived the legal professional-consumer privilege to the extent the particular representative desires information essential to administer the estate. Even then, a lawyer simply cannot just turn about to the private consultant all of the client’s information or usually disclose communications the law firm experienced with the client. The attorney have to decide what details the particular consultant basically needs to administer the estate. As for anything else, the attorney ought to say: “No. Sorry. You just cannot have that.”
An additional appealing twist on this topic is that a deceased client’s data files don’t belong to the customer and therefore develop into a element of the estate, controlled by the private consultant. Alternatively, other than for matters in a file possessing intrinsic price like, say, inventory certificates or promissory notes, information involving the deceased consumer belong to the attorney. And, even if the lawyer was eager to hand more than his or her data files to an individual requesting them, the attorney ought to carry on to honor the ethical prohibition against disclosing shopper communications in the absence of a waiver by the deceased customer.
Ok, is there a lesson listed here? Maybe. It appears to make feeling (at minimum to me) that, in your will, you need to say what details you want your law firm to deliver to your personalized representative — that is, make a obviously mentioned entire or confined waiver of the legal professional-customer privilege. Or, in your will you really should say that you are not waiving the legal professional-client privilege and you assume your attorney to enforce it.
Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. Email him at firstname.lastname@example.org.