BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1163| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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.) CONTINUED AB 1163 Page 2 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 CONTINUED AB 1163 Page 3 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, CONTINUED AB 1163 Page 4 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 **** END **** CONTINUED