[WSBAPT] PR discretion - charitable gift in will

[Doug Schafer]

I agree with Doug Bratt and Eric Nelsen that in my hypothetical Gus is
barred by the "ethics" rules from voluntarily revealing anything to
anybody about his communications with the PC.   But, what if Gus is served
with a subpoena to produce his file copy of the will, or is deposed to
reveal the PC's communications about his intention to ignore the
charitable bequest?  

In other words, would the evidentiary attorney-client privilege cover the
PC's communications to Gus?  If that privilege does not cover the PC's
communications, then the court should order Gus to comply with the
subpoena or answer the deposition questions.  RPC 1.6(b)(6) allows a
lawyer to reveal client information to comply with a court order.

My inclination is that the common law crime-fraud exception (CFE) to the
attorney-client privilege would apply because at the time that the PC was
communicating with Gus the PC was intending to commit a fraud.  The CFE is
generally applied by courts when the client communicated with an attorney
while intending to engage in criminal or fraudulent conduct (or intending
to conceal such past conduct).  Some courts even apply the CFE when a
client is intending to commit other unlawful conduct or to violate their
contractual obligations.

Other thoughts?

See: http://nvbar.org/sites/default/files/opinion_25.pdf
http://www.jha.com/us/blog/?blogID68 
http://www.evergreenethics.com/WA_CFE_cases.html

Doug Schafer



 

wsbapt-owner at lists.wsbarppt.com [mailto:wsbapt-owner at lists.wsbarppt.com]
On Behalf Of Doug Schafer
Sent: Thursday, January 30, 2014 1:45 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] PR discretion - charitable gift in will

On 1/30/2014 11:54 AM, G. (Gus) Benjamin Lindsey III wrote:

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