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.
