BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1163
Assemblymember Tran
As Amended March 26, 2009
Hearing Date: June 9, 2009
Evidence Code; Probate Code
KB
SUBJECT
Attorney-client Privilege: Decedent's Estates
DESCRIPTION
This bill would make several clarifications to the
attorney-client privilege that apply after the client's death.
BACKGROUND
The Evidence Code was enacted in 1965 (Chapter 299, Section 2,
Statutes of 1965) at the recommendation of the California Law
Revision Commission. Through its enactment, California replaced
an incomplete, inconsistent, and confusing body of statutory and
case law with a comprehensive statute.
The attorney-client privilege is a narrow evidentiary privilege
that protects the confidentiality of communications between a
client and his or her attorney. The attorney-client privilege
was codified in the Evidence Code when it was first enacted in
1965. By assuring the client of the lawyer's confidentiality,
the privilege encourages the client to frankly disclose
information to assist the lawyer in his/her representation. It
specifically provides that the lawyer-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.
This marked an apparent change in California law, as under
previous case law, it seemed likely that the privilege continued
to exist after the death of the client, and that no one had the
authority to waive the privilege. (7 Cal.L.Rev.Comm. Reports 1
(1965) citing Collette v. Sarrasin (1920) 184 Cal. 283; Paley v.
(more)
AB 1163 (Tran)
Page 2 of ?
Superior Court (1955) 137 Cal.App.2d 450.) As the basis for
this change, the Law Revision Commission Comment noted
"[a]lthough there is good reason for maintaining the privilege
while the estate is being administered - particularly if the
estate is involved in litigation - there is little reason to
preserve secrecy at the expense of excluding relevant evidence
after the estate is wound up and the representative is
discharged." (7 Cal. L. Rev. Comm. Reports 1 (1965).)
In 2007, the Legislature enacted AB 403 (Tran, Chap. 388, Stats.
2007), which clarified that when a personal representative is
reappointed for the subsequent administration of an estate
pursuant to Probate Code Section 12252, the personal
representative holds the decedent's attorney-client privilege.
AB 403 also directed the California Law Revision Commission
(CLRC) to study "whether, and if so, under what circumstances,
the attorney-client privilege should survive the death of the
client."
This bill would implement recommendations from the completed
CLRC study.
CHANGES TO EXISTING LAW
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.
(Evid. Code Sec. 953.)
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. (Evid. Code Sec. 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 or
she is otherwise instructed by a person authorized to permit
disclosure. (Evid. Code Sec. 954.)
AB 1163 (Tran)
Page 3 of ?
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. (Evid. Code Sec. 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. (Prob. Code Sec. 12252.)
Existing law provides that the appointed representative is a
holder of the attorney-client privilege. (Prob. Code Sec.
12252.)
This bill would clarify 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 would provide that no attorney-client privilege exists
for communications relevant to issues between parties who all
claim through a deceased client in a nonprobate transfer.
COMMENT
1. Stated need for the bill
The author states:
The clarifications in this bill would help avoid disputes over
the meaning of [Probate Code] Section 12252, thereby
conserving resources. Further, the clarifications would
increase the predictability of the attorney-client privilege
and thereby promote 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 further states:
AB 1163 (Tran)
Page 4 of ?
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 would 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 would help to ensure that a deceased
client's donative intent is implemented correctly.
Additionally, this bill would help avoid disputes over the
scope of Section 957, thereby conserving resources.
2.This bill would preserve existing law governing the
attorney-client privilege with two minor modifications
The CLRC began its study by reviewing the purpose 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.
According to the 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 continue its existing attorney-client privilege. In
reaching this conclusion, the CLRC noted that this "approach has
served the state well for over forty years, and there does not
appear to be any clear justification for changing to another
AB 1163 (Tran)
Page 5 of ?
approach at this time." (See Attorney-Client Privilege After
Client's Death, 38 Cal. L. Revision Comm'n Reports 163, 195
(2008).)
The CLRC does, however, recommend two minor changes to the
attorney-client privilege post the client's death, which this
bill would implement. The first is a minor expansion of an
exception to the attorney-client privilege. Under existing law,
the attorney-client privilege does not apply to 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 in
disputes between parties claiming through the client, where the
client presumably would have wanted such disclosure to verify
his or her donative intent. However, this exception does not
apply when third parties, such as creditors, are involved in
disputes based on the assumption that, in these cases, the
client would have wanted his or her communications to remain
privileged.
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. This is consistent with the purpose of the
existing exception to the attorney-client privilege and with the
general policy that relevant evidence should not be withheld
from finders of fact.
In addition, the CLRC recommends clarifying recent changes to
Probate Code Section 12252, which were implemented by AB 403.
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.
This bill would simply move that clarification from the Probate
Code to the Evidence Code in accordance with the CLRC's
recommendation.
Support : Judicial Council; Trusts & Estates Section of the
State Bar
AB 1163 (Tran)
Page 6 of ?
Opposition :None Known
HISTORY
Source : California Law Revision Commission
Related Pending Legislation : None Known
Prior Legislation : AB 403 (Tran, 2007) See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
**************