Attorney/Client Privilege

Attorney-client privilege ceases to exist after the holder of the privilege dies and his personal representative completes discharge of the estate.

In HLC Properties, Ltd., vs. Superior Court (2005) 35 Cal.4th 54, 24 Cal.Rptr.3d. 199, the California Supreme Court determined that the businesses of a deceased entertainer (Bing Crosby) could not claim attorney-client privilege in regard to numerous documents which reflected communications between Bing Crosby and those he had hired to help manage his business interests. After reviewing the legislative history behind Evidence Code §§ 953 and 954, the California Supreme Court determined that the privilege would cease to exist upon final distribution of the estate and discharge of the executor.

An attorney who inadvertently receives documents protected by attorney-client privilege must immediately notify the sender.

In State Compensation Insurance Fund v. WPS (1999) 70 Cal. App. 4th 644, 82 Cal. Rptr 2d 799, an attorney through the inadvertence of opposing counsel received documents subject to the attorney-client privilege. These documents included claim summary forms which had been provided to an expert witness retained by outside counsel who, in turn, provided them to a lawyer who was pursuing a claim against State Fund.

The Appellate Court held here that the lawyer who inadvertently received these documents subject to the privilege was under an ethical obligation to immediately return them and notify the sender of the disclosure, especially since they were marked "privileged".

It is important for such documents to be clearly marked on their face as privileged or confidential, as a lawyer who inadvertently receives them will have no excuse to inspect the contents of the documents but, instead, will be obligated to return them immediately. While this rule will not prevent the unethical attorney from reviewing the documents, it would allow opposing counsel to disqualify said lawyer if it can be shown that the lawyer did review the documents or attempted to take advantage of the information contained therein.