March 13, 2013

Attorney-Client Privilege

A very well-known principle of law is the attorney-client privilege. Whenever an attorney is retained by a client, the communications between the two parties are considered confidential. Thus, these communications are not subject to disclosure to a third-party. While the client is always free to discuss the communications with whomever they want, granted it would be at their own peril. The attorney must "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Bus & P C §6068(e)(1). The only exception to this rule is that “an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” Bus & P C §6068(e)(2).

One rationale for the attorney-client privilege is that it encourages the client to be honest, thorough, and open with their attorney. By shielding communications from basically the world, the client can be free and easy with their communication. The client will not have to worry about their statements coming back to haunt them. Even if the client discloses embarrassing, damaging or bizarre facts, the attorney must still maintain confidentiality subject to Bus & P C §6068(e)(2). This is especially important because an attorney must ascertain all material facts before they can offer advice. If the client is unwilling or afraid to divulge intimate details, the attorney will not be able to render competent legal advice. The following hypothetical illustration highlights the importance of being honest with your attorney and the consequences for secrecy.

Henry was looking to write a trust and was referred to an attorney by his neighbor Joey. Henry met with an attorney and explained that he wanted to leave his entire estate to the local Lion's Club. Years earlier, Henry had fathered an illegitimate child. Henry had purposely lost contact with the child and believed that the child was dead. Since the stigma of illegitimacy was so strong to Henry, he did not disclose this to his attorney, even though the attorney had to maintain confidentiality. Henry irrationally thought that the attorney might disclose the existence of the illegitimate child nevertheless and did not want to risk it. 

When the attorney asked about children, Henry declined to name any. The attorney then wrote the trust and named the Lion's Club as the sole beneficiary of Henry’s trust estate. Unbeknownst to Henry, his son was actually alive at the time of the trust’s execution and his death. Henry’s omission of his will was problematic because of Prob C § 21622. This law states that if the person who signed the trust failed to provide for his child because he thought that the child was dead, such child is entitled to an intestate share of the person’s estate. Since the child was Henry’s sole heir, the child was exclusively entitled to Henry’s trust estate. 

Henry passed away a few years after writing his trust. When the child was made aware of Henry’s death, he applied to be the sole beneficiary of Henry’s estate, and in light of Prob C § 21622, such was distributed to him.

The facts of  Estate of Della Sala (1999) 73 CA4th 463 are somewhat similar to the above hypothetical, although the outcome was different.