[WSBAPT] Attorney-Client privilege lives after death of client with exceptions

Wed Jun 2 17:20:21 PDT 2021

This is a recurring theme in my probate practice.  As a practical matter, someone goes to court with a motion to resolve the issues that you raise.  In my experience, a judge or commissioner will open the file to the parties but not always.

FWIW, here is the authority commonly argued:

RPC 1.6 applies to both "confidences" and "secrets."  Much broader than mere legal advice.
See Seventh Elect Church v. Rogers, 102 Wn.2d 527 (1984).  See WSBA Opinions 183 and 188.

The survival issue is at WSBA Opinion 175 (1982) and the Martin v Shaen and the In re Thomas Estate cases cited.

True, that the paper files are personal property subject to inheritance, but what happens to the restricted information depends upon the lawyer involved and how they may perceive the issue. A difficult issue, inconsistent outcomes.

  -Bruce Moen

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Philip N. Jones
Sent: Wednesday, June 2, 2021 4:49 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Attorney-Client privilege lives after death of client with exceptions

I don't have an exact cite, but I believe that the answer to your last question is in the rules of evidence.

Philip N. Jones
Duffy Kekel LLP
900 S.W. Fifth Ave. Suite 2500
Portland, OR 97204
pjones at duffykekel.com<mailto:pjones at duffykekel.com>
(503) 226-1371 - office
(503) 853-1482 - cell
(503) 226-3574 - fax

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Dalynne Singleton
Sent: Wednesday, June 2, 2021 4:37 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Attorney-Client privilege lives after death of client with exceptions
Importance: High

I have been researching this issue and have not found a definitive answer.  I need some help or guidance please:

  *   Even after your death, your lawyer may not share your communications due to attorney-client privilege.  The client owns the privilege and it dies with him/her.
  *   But there is an exception to the attorney-client privilege rules. Your lawyer can reveal communications to the extent necessary to carry out your estate plan such as the lawyer can explain how your will (or trust) was signed, or what you meant by some provisions.
  *   Your lawyer's files belong to you. Those files are property which passes in accordance with your estate plan.

Issues:
What happens when the physical files when they include confidential communications?
Who gets to decide whether to reveal the contents of those files?
            Where is the authority for the privilege exception for estate plan?

Dalynne Singleton
Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291
360.568.5065
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>
Website:  www.glglawgroup.com<http://www.glglawgroup.com/>
As we face the challenges presented by COVID-19, we have limited staffing in the office to maintain critical functions. Attorney/client meetings will be handled by teleconference or virtually whenever possible.  Be assured that we will continue to advise & support our clients throughout this health emergency.  If you would like to set a telephone conference, please call or email my paralegal theresa at glgmail.com<mailto:theresa at glgmail.com> or dara at glgmail.com<mailto:dara at glgmail.com>.
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