BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 1163|
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                                    CONSENT


          Bill No:  AB 1163
          Author:   Tran (R)
          Amended:  03/26/09 in Assembly
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-0, 6/9/09
          AYES:  Corbett, Harman, Florez, Leno, Walters

           ASSEMBLY FLOOR  :  77-0, 4/27/09 - (Consent), See last page  
            for vote


           SUBJECT  :    Attorney-client privilege:  decedent's estates

           SOURCE  :   California Law Revision Commission


           DIGEST  :    This bill makes several clarifications to the  
          attorney-client privilege that apply after the client's  
          death.

           ANALYSIS  :    

          Existing law 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.)
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          Existing law 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.  (Evidence Code Section 954.)

          Existing law provides that a lawyer may not claim the  
          privilege if there is no holder of the privilege in  
          existence or if he/she is otherwise instructed by a person  
          authorized to permit disclosure.   (Evidence Code Section  
          954.)

          Existing law 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.  (Evidence Code Section 954.)

          Existing law provides that if subsequent administration of  
          an estate is 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.  (Probate Code Section  
          12252.)

          Existing law provides that the appointed representative is  
          a holder of the attorney-client privilege.  (Probate Code  
          Section 12252.)

          This bill 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.

          This bill provides that no attorney-client privilege exists  

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          for communications relevant to issues between parties who  
          all claim through a deceased client in a nonprobate  
          transfer.    

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  6/10/09)

          California Law Revision Commission (source)
          Judicial Council; Trusts & Estates Section of the State Bar


           ARGUMENTS IN SUPPORT  :    The author's office states, the  
          clarifications in this bill helps avoid disputes over the  
          meaning of [Probate Code] Section 12252, thereby conserving  
          resources.  Further, the clarifications increases the  
          predictability of the attorney-client privilege and thereby  
          promotes a long-standing purpose of the privilege, to  
          encourage communication between clients and their  
          attorneys, without fear that the attorney may be forced to  
          reveal the communication.

          The author's office further states, since the enactment of  
          [Evidence Code] Section 957, there has been a dramatic  
          increase in the number of nonprobate transfers.  Many  
          at-death transfers now occur outside of probate.  If the  
          exception in Section 957 did not extend to a dispute  
          involving a nonprobate transfer, the decedent's  
          attorney-client privilege will be applicable, and may block  
          relevant evidence of the decedent's donative intent.  By  
          making clear that the exception in Section 957 applies to  
          any dispute between the deceased client's beneficiaries,  
          including a dispute involving a beneficiary of a nonprobate  
          transfer, this bill helps to ensure that a deceased  
          client's donative intent is implemented correctly.   
          Additionally, this bill helps avoid disputes over the scope  
          of Section 957, thereby conserving resources.

           ASSEMBLY FLOOR  :  
          AYES:  Adams, Ammiano, Anderson, Arambula, Beall, B.  
          Berryhill, T. Berryhill, Blakeslee, Block, Blumenfield,  
          Brownley, Buchanan, Caballero, Calderon, Carter, Chesbro,  
          Conway, Cook, Coto, Davis, De La Torre, De Leon, De Vore,  

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          Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,  
          Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,  
          Gilmore, Hagman, Hall, Hernandez, Hill, Huber, Huffman,  
          Jeffries, Jones, Knight, Krekorian, Lieu, Logue, Lowenthal,  
          Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello,  
          Nielson, J. Perez, V.M. Perez, Portantino, Price, Ruskin,  
          Salas, Silva, Skinner, Smyth, Solorio, Strickland, Swanson,  
          Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass


          RJG:do  6/10/09   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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