In every tragic commuter airplane crash, there's a frantic search for the "black box," a sturdy device containing data that may explain why the plan went down. The black box is built to withstand all worst-case scenarios. Much the same, attorney-client privilege is a box containing highly protected information that may provide answers to a host of questions. Unlike the black box, however, outsiders are not meant to access attorney-client privileged communications. See, e.g., People v. Flores, 71 Cal.App.3d 559, 565 (1977) ("The privilege of confidential communication between client and attorney should...be regarded as sacred."). To the surprise of some, the evidence code allows for this access in limited estate litigation situations.
This article addresses the issues every estate attorney should be alert to regarding the attorney-client privilege, whether from a planning or litigation perspective.
Deceased clients and a living privilege
Generally speaking, when a client dies, the privilege lives on and is held by the deceased client's personal representative. Evid. Code § 953, subd. (c).) There are a few distinct and significant statutory exceptions to this rule. These exceptions are precisely what allow estate litigators access to privileged communications and are what estate planners must be aware of in the event a deceased client's estate plan is litigated.
Evidence Code section 957
The attorney-client privilege does not apply "to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession, nonprobate transfer, or inter vivos transaction." Evid. Code, § 957. Despite the statute's operation since 1967 and effective amendment in 2010, there is very little case law interpreting this language. See, e.g., DP Pham LLC v. Cheadle 246 Cal.App.4th 653, 669-670 (2016) ("There is no California case law interpreting section 957's relevant language....") ("DP Pham"). Nevertheless, at least two principles appear clear.
First, the exception only applies to the communications of a deceased client. Fletcher v. Superior Court 44 Cal.App.4th 773, 778 (1996) ("Fletcher"). Second, the relevant issue between the litigating parties must be through the deceased client, not against the deceased client. DP Pham, 246 Cal.App.4th at 670.
Only relevant to communications of the deceased client
To the first principle, Fletcher v. Superior Court clarifies the statute's ambiguity as to whose communication is affected by the statute, holding that the statute only applies to the communications between the deceased client and his or her attorney. Fletcher, 44 Cal.App.4th 773 at 778. In Fletcher, a petition was filed to determine the invalidity of a trust. Id. at 776. The petitioners filed a motion to compel the decedent's sister and trustee, Claire Fletcher ("Ms. Fletcher"), to produce documents withheld on the ground of attorney-client privilege and attorney work product. Id. The issue, however, was that Ms. Fletcher and the decedent shared the same estate planning attorney. Id. When the decedent was alive, Ms. Fletcher called her attorney and asked him to consult with the decedent. Id. The attorney did so and assisted the decedent in amending her trust. Id. The trust contestants sought disclosure of the communications between Ms. Fletcher and her attorney. Id. The Fletcher court held the statute referred only to "the relationship between the attorney and the deceased client." Id. at 778.
Through and not against
To the second principle of Evidence Code section 957, the relevant issue between the litigating parties must be through the deceased client, not against the deceased client. DP Pham, 246 Cal.App.4th 653 at 670. The Law Revision Commission comments are particularly insightful, and the DP Pham court quoted them when it stated the "'underlying rationale...is that claimants in privity with the estate claim through the client, not adversely, and the deceased client presumably would want his communications disclosed in litigation between such claimants so that his desires in regard to the disposition of his estate might be correctly ascertained and carried out.'" Id., quoting Cal. Law Revision Com. com., 29B pt. 3A, West's Ann. Evid. Code (2009 ed.) foll. §957, p. 387 [second italics added].)
In DP Pham a client had entered into contracts with two buyers concerning the same mobile home park. DP Pham, 246 Cal.App.4th 653 at 660. One of the buyers submitted a declaration containing an attorney-client communication. Id. The buyer justified disclosure of the communication based on Evidence Code section 957 because the case sought to resolve issues between the parties all of whom claimed through the deceased client. Id. at 669.
The DP Pham court heavily relied on the Law Revision Commission comments and recommendation to hold that the exception did not apply because the buyer-plaintiffs asserted claims against the estate, not through the estate. DP Pham, 246 Cal.App.4th 653 at 671. Both buyers sought monetary damages against the estate for breach of contract. Id. at 670. Essentially, if the disclosed communications indicated the true buyer, then the ineffective buyer would continue their claim for damages against the estate. Id. at 671. As the court noted, "[t]hat result is inconsistent with the exception's purpose." Id.
In summary, the exception found in Evidence Code section 957 applies to claims through the deceased client, not against. DP Pham, 246 Cal.App.4th 653 at 670. Additionally, the exception only applies to communications between the deceased client and his or her attorney. Fletcher, 44 Cal.App.4th 773 at 778.
Section 959: Assessing intention or competence
The exception to attorney-client privilege found in Evidence Code section 959 is fairly straightforward. The exception applies to "communication relevant to an issue concerning the intention or competence of a client executing an attested document of which the lawyer is an attesting witness." Evid. Code, § 959. Notably, the statute is not limited to deceased clients. Rather, the exception relates to "the type of communication about which an attesting witness would testify." 7 Cal. Law Revision Com. Rep. (1965) at p. 1170, reprinted in Deering's Ann. Evid. Code (Lexis Advance through all 2016 legislation and propositions (2016 Regular and 2015-2016 2nd Ex. Sessions)) foll. § 959).
Thus, a lawyer who serves as an attesting witness can divulge information received in his or her capacity as an attesting witness, but not information received as a lawyer. Estate of Kime, 144 Cal.App.3d 246, 257. Simply being a lawyer does not immunize the lawyer from disclosing information that an attesting witness must disclose when asked to testify.
While the statute is relatively straightforward, the difficulty is applying it to individual pieces of communication. As can be easily imagined, a lawyer serving as an attested witness will likely engage in communication with his or her client that goes well beyond issues concerning the "intention or competence of a client". Thus, the privilege may apply to some lines of communication, but not others despite the fact the totality of the communication occurs in one sitting. See, e.g., Estate of Kime, 144 Cal.App.3d 246 at 258.
Sections 960 & 961: intent and validity
The exceptions to the attorney-client privilege found in Evidence Code sections 960 and 961 are sufficiently similar as to be analyzed jointly. Section 960 concerns the intention of a deceased client regarding a deed of conveyance, will, or other writing, and section 961 concerns the validity of a deed of conveyance, will, or other writing executed by the deceased client.
The similarities between sections 960 and 961 gave rise to joint Law Revision Commission comments. See DP Pham, 246 Cal.App.4th 653 at 672. The Commission's comments explain the purpose of sections 960 and 961 by stating that although the attesting witness exception stated in Section 959 is limited to information of the kind to which one would expect an attesting witness to testify, there is merit to having an exception that applies to all dispositive instruments. A client ordinarily would desire his lawyer to communicate his true intention with regard to a dispositive instrument if the instrument itself leaves the matter in doubt and the client is deceased. Likewise, the client ordinarily would desire his attorney to testify to communications relevant to the validity of such instruments after the client dies. Accordingly, "two additional exceptions--Sections 960 and 961--are provided for this purpose. These exceptions have been recognized by the California decisions only in cases where the lawyer is an attesting witness." Cal. Law Revision Com., com. 29B pt. 38, West's Ann. Evid. Code (2009 ed.) foll. § 960, p. 394.
Scarce case law
The Commission's comments again carry great weight as there is little case law interpreting sections 960 and 961. See DP Pham, 246 Cal.App.4th 653 at 672 ("As with section 957's exception, there is no case law construing the language of these statutes..."). Because of the comments' reference to section 959, the DP Pham court interpreted the comments to mean that sections 960 and 961 should be narrowly interpreted to apply only to the type of communication about which an attesting witness would testify. Id. at 673. Such an interpretation severely narrows what appears to be relatively broad exceptions found in sections 960 and 961.
For instance, in DP Pham, the deceased client's attorney sent an email and letter to the client regarding the potential sale of the client's mobile home park. DP Pham, 246 Cal.App.4th 653 at 673. The court held that these communications did not fall within the exceptions found in sections 960 and 961 because there was "no showing these communication concern communications about which an attesting witness would testify." Id. Both the communications occurred before the client actually entered into a purchase agreement. Id. The court acknowledged the communications "would reflect general information about Obarr's [the decedent's] intent concerning the Property's sale..." Id. (bracketed information added for clarity). However, the court held that applying sections 960 and 961 to the communications would essentially eliminate the privilege with respect to the purchase agreement, a result well beyond the intended scope of the exceptions. Id. at 673-674.
Was the DP Pham court correct? Why would the Legislature create sections 960 and 961 if the sections only function like the attesting witness exception found in section 959 except for deceased clients? Rather, it seems as though the facts in DP Pham are the exact type of case that gave rise to sections 960 and 961. A client, now deceased, confusingly entered into two purchase agreements with two buyers for the same property. That client communicated with his attorney regarding those purchase agreements. What were the client's true intentions? Isn't this exactly what section 960 would resolve? According to the DP Pham court, no, the sacrosanct black box of attorney-client privilege must only be exposed with exceptions more narrowly interpreted than drafted.
Applying the exceptions
To illustrate how these exceptions apply, let's take the perspective of an estate litigator and walk through the process. Your client is contesting the validity of a trust amendment her deceased father executed toward the end of his life with an attorney he had not used previously. The new successor trustee and main beneficiary is the housekeeper. Your client's contest is based both on lack of capacity and undue influence.
One of your first tasks will be to subpoena documents from the estate planning attorney who drafted the amendment. Your subpoena is sent with a consumer notice to the trustee because the decedent's personal representative is the holder of the privilege. Evid. Code, § 953, subd. (c). Not surprisingly, the trustee asserts the privilege and directs the estate planning attorney not to produce any documents and not to discuss his meetings with the decedent.
Make a motion
To challenge this assertion, you must file a motion to compel. On a motion to compel, the trustee, as the holder of the privilege, has the burden of establishing the preliminary facts necessary to support the privilege claim. Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725, 733 (2009) ("Costco").) Once the trustee establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to be privileged, and the burden shifts to your client to establish the communication is not privileged or that an exception applies. Id.
The challenge essentially becomes a two-step process. First, is the basis for the claim of privilege accurate? At this step, your client can proffer evidence the communication does not meet the foundational elements for the privilege listed in Evidence Code section 952: (1) confidential communication; (2) communication made between attorney and client; (3) communication made in the course of the attorney-client relationship. The incredibly difficult aspect for the challenger is that the evidence proffered at this first step cannot be the communication itself.
No in camera inspection to determine basis for privilege
In a somewhat twisted manner, courts are prohibited from reviewing the communication to determine the claim of privilege. Evid. Code, § 915; Costco, 47 Cal.4th 725 at 731-732, 736; DP Pham, 246 Cal.App.4th 653 at 660. Rather, courts may review the underlying facts supporting the claim, "for example, whether the attorney-client relationship existed at the time the communication was made, whether the client intended the communication to be confidential, or whether the communication emanated from the client." Costco, 47 Cal.4th 725 at 737. For instance, a court could review the recipients of an email to determine the underlying basis for the claim of privilege.
Thus, at the first step, the law appears quite clear your client cannot seek disclosure of the communication or use the communication itself as evidence to refute the privilege claim. For example, let's say your client believes an email exchange exists between her deceased father and the estate planning attorney. She also believes the emails contain her father's nonsensical utterings because he was losing his mind at the time, which is great evidence for her case. She argues the email is not privileged because it's utterings of a madman with no legal advice in response. You argue the court should review the email to determine if it's non-privileged, nonsensical utterings. Opposing counsel argues, by way of affidavit from the trustee, that the email exchange was between an attorney and a client during the course of that relationship, and is, therefore, presumed to be privileged and cannot be reviewed to determine whether it is privileged.
In response, you smartly request disclosure of just the recipients of the email knowing the court is able to review the recipients of a communication to determine whether the communication was confidential. Your client thinks you're a genius because in the email's recipient line is the housekeeper's email. The housekeeper's presence in the email exchange destroys the claimed privilege.
If the email recipients had simply been the decedent and the attorney, then the basis for the privilege would remain. When the basis for the privilege cannot be refuted, then your client must move to the second step, attempting to apply an exception to the privilege. The law on disclosure at this second step becomes far less clear.
Disclosure to determine exception
Despite the seemingly absolute prohibition of in-camera review to "rule upon the claim of privilege," courts have ordered disclosure to determine whether an exception to the privilege applies. See Oxy Resources California, LLC v. Superior Court 115 Cal.App.4th 874, 896 (2004) ("OXY"); see also Cornish v. Superior Court 209 Cal.App.3d 467, 480 (1989) ("Cornish"). Essentially, the courts in OXY and Cornish distinguished between evidence to determine the foundational elements for the privilege claim and evidence to determine the applicability of an exception to the privilege.
The court in DP Pham, however, opined that this distinction is no longer good law after the California Supreme Court's ruling in Costco. DP Pham, 246 Cal.App.4th 653 at 666. The DP Pham court interpreted the Supreme Court's Costco opinion as disapproving of the disclosure in OXY, describing the disclosure in OXY as "inappropriate." Id. In this author's opinion, this interpretation of the Supreme Court's opinion in Costco, however, goes too far. In Costco, the Supreme Court held that disclosure of the allegedly privileged communication is appropriate after a court has determined an exception applies generally. Costco, 47 Cal.4th 725 at 740. While the Costco opinion expressly disapproved of other cases in the very preceding paragraphs, no such language is used with respect to OXY and Cornish. Id. Moreover, the Supreme Court in Costco was not ruling on whether an exception to the privilege applied. Id. at 731. If anything, OXY and Cornish were inapposite with regard to the issue in Costco, but not disapproved.
An uncertain future
Nevertheless, the aftermath from Costco and DP Pham leave something to be desired when determining whether disclosure of the allegedly privileged communication is appropriate to determine the applicability of an exception to the privilege. The Supreme Court has left us with the vague direction that disclosure is appropriate after a court determines "an exception applies generally." Costco, 47 Cal.4th 725 at 740. When does an exception apply generally? It seems only further litigation or legislative action will define this nuance.
In the email example used above, let's assume the decedent had a friend who inadvertently saw the email between the decedent and his estate planning attorney. The friend is willing to submit an affidavit that the email from the decedent contained complete non-sense, made-up words, half-written sentences, and fantastical tales of flying horses. This email occurred the same day the decedent executed the trust amendment. You argue that, at the least, Evidence Code sections 957 and 961 apply generally and the court should review the email to further determine whether the exceptions apply.
Section 957 applies to a communication relevant to an issue between parties all of whom claim through a deceased client. Here, the email is evidence of incapacity and susceptibility to undue influence, which are relevant to the issue of the trust amendment's validity. The amendment's validity is the issue between the parties (the housekeeper and your client) all of whom claim through the decedent.
Section 961 applies to a communication relevant to an issue concerning the validity of a writing, executed by a client, now deceased, purporting to affect an interest in property. Again, the email speaks to the decedent's capacity and susceptibility to undue influence, which are relevant to the validity of the amendment.
Based on the friend's affidavit and these statutory exceptions, you argue the exceptions apply generally and that the court is permitted to review the email to fully determine the application of the exceptions. Unfortunately, whether the court follows the DP Pham holding precluding all in-camera review or the Costco holding allowing in-camera review when exceptions apply generally is anyone's guess.
Benjamin D. Fox is an associate with the Huber Law Group, a boutique firm in Sacramento offering estate planning, administration, and litigation services. Mr. Fox's practice consists exclusively of trust litigation, contested probate matters, and financial elder abuse.