BILL ANALYSIS
AB 1163
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1163 (Tran) - As Amended: March 26, 2009
PROPOSED CONSENT
SUBJECT : ATTORNEY-CLIENT PRIVILEGE: CLIENT'S DEATH
KEY ISSUE : IN ORDER TO BETTER PROTECT A CLIENT'S INTERESTS
after his or her death, Should MINOR CHANGES BE MADE TO the
attorney-client privilege?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
The attorney-client privilege is a long-standing, narrow
evidentiary privilege that protects the confidentiality of
communications between a client and his or her attorney. This
non-controversial bill makes two small changes to the
attorney-client privilege after the death of the client. These
very modest changes come directly from recommendations of the
California Law Revision (CLRC) in response to the AB 403 (Tran),
Chap. 388, Stats. 2007, which asked the CLRC to study "whether,
and if so, under what circumstances, the attorney-client
privilege should survive the death of the client." This bill
has no known opposition.
SUMMARY : Makes several clarifications to the attorney-client
privilege that apply after the client's death. Specifically,
this bill :
1)Clarifies that the attorney-client privilege is held by a
deceased client's personal representative appointed for
subsequent estate administration after the original personal
representative has been discharged.
2)Provides that no attorney-client privilege exists for
communications relevant to issues between parties who all
claim through a deceased client in a nonprobate transfer.
EXISTING LAW :
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1)Provides that it is the duty of an attorney to maintain
inviolate the confidence, and at every peril to himself or
herself to preserve the secrets, of his or her client unless
the attorney reasonably believes the information is likely to
result in death or substantial bodily harm. (Business and
Professions Code Section 6068(e).)
2)Defines, for the purposes of attorney-client privilege, the
"holder of the privilege" as:
a) The client when he has no guardian or conservator;
b) A guardian or conservator of the client when the client
has a guardian or conservator;
c) The personal representative of the client if the client
is dead; or
d) A successor, assign, trustee in dissolution, or any
similar representative of an entity that is no longer in
existence. (Evidence Code Section 953. Unless stated
otherwise, all further statutory references are to that
code.)
3)Provides that 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:
a) The holder of the privilege;
b) A person who is authorized to claim the privilege by the
holder; or
c) The person who was the lawyer at the time of the
confidential communication. (Section 954.)
4)Provides that a 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. (Section 954.)
5)Provides that there is no attorney-client privilege for
communications relevant to issues between parties who all
claim through a deceased client regardless of whether the
claims arise through testate or intestate succession or
through inter vivos (during life) transaction. (Section 957.)
6)Provides that if subsequent administration of an estate is
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necessary after the personal representative has been
discharged because (a) other property is discovered, (b)
disclosure is sought of a communication that is deemed
privileged in the absence of a waiver by a personal
representative, or (c) it becomes necessary or proper for any
cause, the court is required to appoint a personal
representative and give notice of the hearing of the
appointment, as provided. Provides that the appointed
representative is a holder of the attorney-client privilege.
(Probate Code Section 12252.)
COMMENTS : The attorney-client privilege is a long-standing,
narrow evidentiary privilege that protects the confidentiality
of communications between a client and his or her attorney. By
assuring the client of the lawyer's confidentiality, the
privilege encourages the client to frankly disclose information
to assist the lawyer in his or her representation. The
attorney-client privilege was codified in the Evidence Code when
it was first enacted in 1965. It specifically provides that the
attorney-client privilege does not indefinitely survive the
client's death, but instead remains in effect until the probate
of the deceased client's estate ends and the court discharges
the client's personal representative.
AB 403 (Tran), Chap. 388, Stats. 2007, originally provided that
the attorney-client privilege survives indefinitely, but, as
passed by the Legislature, that bill directed the CLRC to study
"whether, and if so, under what circumstances, the
attorney-client privilege should survive the death of the
client."
CLRC Study : The CLRC began its study by reviewing the purposes
of the attorney client privilege - to promote justice by
encouraging clients to fully disclose information to their
attorneys - along with an explanation about why privileges are
generally limited in scope - any privilege necessarily excludes
evidence, which could hamper the search for truth.
The CLRC reviewed California's current attorney-client
privilege, the history behind that privilege and how other
states treat the privilege after the client has died.
California's attorney-client privilege, following the Uniform
Rules of Evidence, specifically survives the death of the client
only for so long as a personal representative is in place
distributing the decedent's assets and paying his or her debts.
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According to CLRC, 25 other states treat the attorney-client
privilege similarly after a client's death.
After reviewing a number of alternatives to the current
attorney-client privilege, including an indefinite survival of
the privilege, an expansion of the privilege until all
nonprobate assets have passed to beneficiaries, a balancing test
for all post-death applications, and an outright elimination of
the privilege at the client's death, the CLRC recommends that
California's continue its existing attorney-client privilege.
Writes the CLRC: "That approach has served the state well for
over forty years, and there does not appear to be any clear
justification for changing to another approach at this time."
CLRC recommends two minor changes and this bill seeks to
implement those changes . While recommending that the current
attorney-client privilege be maintained, the CLRC does, however,
recommend two minor changes to the attorney-client privilege
post the client's death; and this bill seeks to make those
changes. The first is a minor expansion of an exception to the
attorney-client privilege. Today, the privilege does not apply
for communications relevant to issues between parties who all
claim through the deceased client. This is true regardless of
whether the claims arise through testate or intestate succession
or through an inter vivos transfer. This exception allows
disclosure when the client would have wanted such disclosure to
demonstrate his or her intent. This exception does not apply
when third parties, such as creditors, are involved, with the
assumption that, in these cases, the client would have wanted
his or her confidences kept.
The current exception only applies to transfers through probate
or transfers that occurred in the deceased client's lifetime.
The exception does not apply to transfers that occur after
death, but outside of probate, such as bank accounts that are
payable to a beneficiary on the death of the account holder.
This bill would expand the exception to include nonprobate
transfers as well.
In addition, the CLRC recommends clarifying recent changes to
Probate Code Section 12252. Those changes, also from AB 403,
clarified that when a personal representative is reappointed
pursuant to Probate Code Section 12252, the personal
representative holds the decedent's attorney-client privilege.
The CLRC recommends moving that clarification from the Probate
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Code to the Evidence Code and this bill simply implements that
clarification.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334