BILL NUMBER: AB 1163	ENROLLED
	BILL TEXT

	PASSED THE SENATE  JUNE 15, 2009
	PASSED THE ASSEMBLY  APRIL 27, 2009
	AMENDED IN ASSEMBLY  MARCH 26, 2009

INTRODUCED BY   Assembly Member Tran

                        FEBRUARY 27, 2009

   An act to amend Sections 953 and 957 of the Evidence Code, and to
amend Section 12252 of the Probate Code, relating to attorney-client
privilege.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1163, Tran. Attorney-client privilege: decedent's estates.
   (1) Under existing law, a client of a lawyer has a privilege to
refuse to disclose, and to prevent another from disclosing, a
confidential communication between the client and lawyer if the
privilege is claimed by the holder of the privilege, a person who is
authorized to claim the privilege by the holder, or the person who
was the lawyer at the time of the confidential communication.
However, the lawyer may not claim the privilege if there is no holder
of the privilege in existence or if he or she is otherwise
instructed by a person authorized to permit disclosure. "Holder of
the privilege" is defined for purposes of these provisions to include
the client, a guardian or conservator of the client, the personal
representative of the client if the client is dead, and a successor,
assign, trustee in dissolution, or any similar representative of a
firm, association, organization, partnership, business trust,
corporation, or public entity that is no longer in existence.
   This bill would clarify that the personal representative of a
client that is dead, and who is appointed for purposes of subsequent
estate administration pursuant to the provisions described in (3)
below, is a holder of the privilege.
   (2) Under existing law, there is no lawyer-client privilege as 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 or by inter vivos transaction.
   This bill would clarify that this exception also applies when any
of the parties claims under a nonprobate transfer.
   (3) Under existing law, if subsequent administration of an estate
is necessary after the personal representative has been discharged
either because other property is discovered, or disclosure is sought
of a communication that is deemed privileged in the absence of a
waiver by a personal representative, as specified, or because it
becomes necessary or proper for any other cause, the court is
required to appoint as personal representative the person entitled to
appointment and to give notice of the hearing of the appointment to
the person who served as personal representative at the time of the
order of discharge and to other interested persons, as specified.
Existing law requires the appointed personal representative to be a
holder of the decedent's lawyer-client privilege, as specified.
   This bill would delete the requirement that the appointed personal
representative be a holder of the decedent's lawyer-client
privilege. The bill also would delete the requirement that the court
perform these functions when subsequent administration of an estate
is necessary after the personal representative has been discharged
because disclosure is sought of a communication that is deemed
privileged in the absence of a waiver by a personal representative.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 953 of the Evidence Code is amended to read:
   953.  As used in this article, "holder of the privilege" means:
   (a) The client, if the client has no guardian or conservator.
   (b) A guardian or conservator of the client, if the client has a
guardian or conservator.
   (c) The personal representative of the client if the client is
dead, including a personal representative appointed pursuant to
Section 12252 of the Probate Code.
   (d) A successor, assign, trustee in dissolution, or any similar
representative of a firm, association, organization, partnership,
business trust, corporation, or public entity that is no longer in
existence.
  SEC. 2.  Section 957 of the Evidence Code is amended to read:
   957.  There is no privilege under this article as 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.
  SEC. 3.  Section 12252 of the Probate Code is amended to read:
   12252.  If subsequent administration of an estate is necessary
after the personal representative has been discharged because other
property is discovered or because it becomes necessary or proper for
any other cause, both of the following shall apply:
   (a) The court shall appoint as personal representative the person
entitled to appointment in the same order as is directed in relation
to an original appointment, except that the person who served as
personal representative at the time of the order of discharge has
priority.
   (b) Notice of hearing of the appointment shall be given as
provided in Section 1220 to the person who served as personal
representative at the time of the order of discharge and to other
interested persons. If property has been distributed to the State of
California, a copy of any petition for subsequent appointment of a
personal representative and the notice of hearing shall be given as
provided in Section 1220 to the Controller.