The lawyer-client privilege continues after death

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The lawyer/attorney-client privilege, with some limited exceptions (see below), remains intact after the death of a client. The duty of the lawyer to adhere to it can, however, be waived by the client’s successor in interest, typically the deceased client’s personal representative. Regardless of a waiver, such disclosure of confidential information must be limited and pertain to the deceased client’s dispositive instruments and intent, including prior instruments and relevant communications

A lawyer may be impliedly authorized by the former now deceased client to divulge confidential information that would promote the client’s estate plan, avoid litigation, preserve assets and further the family’s understanding of the decedent’s intentions.

The California evidence code provides specific exceptions to the lawyer client privilege:

  1. When there is an issue between parties who claim through a deceased client. CA Evidence Code Section 957
  2. When the confidential communication concerns a question about intention or competence of a client who executed an attested document of which the lawyer is an attesting witness. CA Evidence Code Section 959
  3. When the communication is relevant to an issue concerning the intent of a deceased client relating to a document in a real estate transaction CA Evidence Code Section 960
  4. Same as above, but not concerning intent but validity of the document. CA Evidence Code Section 961
  5. When no holder of the privilege exists for a deceased client. CA Evidence Code Section 954(c)

Jon J. Kramer, Dead Men’s Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death, 89 J. Crim. L. & Criminology 941 (1998-1999)

See also: What is the difference between the duty of confidentiality and the attorney-client (client-lawyer) privilege?

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