by Peter Klenk, Esq. & Amanda Gormley, Esq.
The attorney-client privilege is one of the most ancient rules of evidence. Though it varies slightly from state to state, the general rule dictates that a client has the right to refuse to disclose and to prevent anyone else from disclosing confidential communications that occur between the client and his attorney. The privilege belongs to the client, not to the attorney, but the attorney must refuse to testify as to those communications with the client, unless the client has waived this privilege and instructs or permits the attorney to testify. While the client is living, the attorney cannot choose unilaterally to reveal attorney-client privileged communications absent express permission from the client. Yet, what happens after the client has died? Is the client, from the grave, actually capable of preventing the attorney from testifying?
The Law Offices of Peter L. Klenk and Associates focuses exclusively on Wills, Trusts, Estate Administration and Estate Litigation surrounding Wills and Trusts (Will Challenges, Fiduciary Accountings, Executor or Administrator conflicts, etc.). During one of our recent Will Challenges it became necessary to obtain the deceased’s communications with his former attorney. That attorney claimed that he was prevented from disclosing his communications with his deceased client due to the attorney-client privilege. We were then forced to petition the court to order the attorney to release the requested information. We were successful in obtaining the Court Order, and the attorney was subsequently forced to release his file to us and he was also forced to testify as to his communications with the deceased client. The following is an outline of the legal arguments used in obtaining the Court Order:
To assist you in understanding the legal issues, we have created a fictional example.
Example: New Jersey residents Bob and Lisa Smith are married with two adult children. Bob and Lisa arrange to meet at Attorney Brown’s office to discuss the drafting of new Wills. During their meeting with Attorney Brown, Bob and Lisa discuss a number of topics concerning their estate plans, including their feelings toward their two adult children, their financial status, and their ultimate plans for their estates after their deaths. Attorney Brown drafts Wills according to Bob and Lisa’s wishes. Two and a half weeks later, Bob and Lisa’s attorney is served with a Subpoena requiring him to appear in court to testify concerning a lawsuit between the Smith’s and a third party. Bob and Lisa are both alive and neither waives the attorney-client privilege. Can Attorney Brown be compelled to testify concerning the contents of Bob and Lisa’s Wills and/or the contents of his discussions with Bob and Lisa during their meeting at his office? The answer is generally, no. As long as the conversations do not fall into a few narrow exceptions, (commission of a crime etc.) Attorney Brown’s communications with his clients, Bob and Lisa Smith, are protected by the attorney-client privilege and Attorney Brown cannot testify as to what Bob and Lisa said to him.
Now, let’s take this example a little further. The facts are the same, however, during the Smith’s meeting with Attorney Brown, Bob explains to Attorney Brown the reason why he has chosen to exclude their son from his Will. A few years later Lisa dies followed shortly thereafter by Bob. Bob and Lisa’s daughter files Bob’s Will and is appointed Executor. Bob and Lisa’s son is displeased with the contents of Bob’s last Will, as he has been disinherited. He hires an attorney who challenges the validity of Bob’s Will. Several months later, the daughter, as Executor, subpoenas Attorney Brown and provides him with a Release/Authorization, which instructs him to testify as to his communications with Bob concerning Bob’s intentions to disinherit his son. Can Attorney Brown be compelled to testify concerning the contents of his prior discussions with the now deceased Bob Smith? More than likely, yes.
New Jersey Rule of Evidence 504 protects communications between an attorney and his or her client if such communications were made in confidence and while seeking legal counsel. There are however, exceptions to this rule after a client’s death.
First, N. J. R. E. 504(1) states that with respect to the attorney-client privilege of a deceased individual, the lawyer shall claim the privilege, unless otherwise instructed by the client’s personal representative. In the case of a deceased individual, the personal representative of the deceased is the executor or administrator of the deceased’s estate. With this in mind, the daughter provided Attorney Brown with a Release/Authorization. This Release/Authorization waives the attorney-client privilege on behalf of the estate and obligates Attorney Brown to testify as to what Bob told him.
Second, despite the sufficiency of the Release/Authorization alone to waive any possible attorney-client privilege between Attorney Brown and his deceased client, there is a further applicable exception to the attorney-client privilege found in N.J.R.E. 504(2)(b). N.J.R.E. 504(2)(b) applies to: “a communication relevant to an issue between parties all of whom claim through the client, regardless of whether the respective claims are by testate or intestate succession or by inter vivos transaction.”
New Jersey case law provides insight into the applicability of N.J.R.E. 504(2)(b) to the facts of our example. Courts have applied the exception to the attorney-client privilege to permit discovery of such information only when the individual who had the right to assert the attorney-client privilege becomes deceased. The courts have determined that such communications, information, and documents are no longer privileged after the client’s death in a suit between the testator’s heirs, devisees or other parties who claim under him.” See In the Matter of the Estate of Frances Crook, Deceased, 87 N.J. Super 210, 213. See also Enrique Ervesun v. Bank of New York, 99 N.J. Super 12, 169; See also Balazinski v. Lebid, 65 N. J. Super 483 at 494.
The Balazinski case displays the applicability of the exception in further detail. Balazinski involved an appeal based upon the Chancery Court’s determination that title to a piece of property was held as tenants by the entirety between the deceased petitioner’s father, and his deceased wife. The Chancery Court originally precluded the petitioner from admitting into evidence communications and prior statements made between the deceased and his attorney (these communications evidenced that title was not held as tenants by the entirety), based upon the attorney-client privilege. The Appeals Court reviewed the evidence, and determined that the Chancery Court had erred in not admitting the evidence on the grounds that ” we find no sound basis for defendant’s contention that Andrew’s conversations with his attorney for the preparation of his will were confidential or privileged, thereby precluding the attorney from testifying thereto. When he executed the will, he may have intended that its contents should not be divulged by his attorney during his lifetime, but it is natural to assume that he would not want this confidence to survive his death.” (Emphasis added).
Third, recognizing that the information contained in Attorney Brown’s file falls under the exception to the attorney-client privilege, his testimony as to what Bob said about disinheriting his son is relevant to the Will Challenge and is therefore, discoverable. Attorney Brown’s testimony can help prove that Bob was competent, was not under Undue Influence, was not subject to Fraud, that the Will is not a forgery and that Bob was not subject to Fraud in the Inducement. The purpose of the rules of discovery in New Jersey is to “eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments rest upon real merits and not upon the skill and maneuvering of counsel.” Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995), quoting Olivero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990).
Consequently, the discovery rules permit discovery of all matters, not privileged, that are relevant “to the subject matter involved in the pending action.” R. 4:10-2(a) (emphasis added). Consistent with the underlying purpose of discovery, the rules have construed relevance broadly. Under the rules, a party may not withhold discovery because the party believes it is not relevant or will be inadmissible at trial. Instead, permitting discovery is required if “the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. (emphasis added).
Therefore, even though Bob and Lisa Smith may have never dreamt nor intended that any of their children would know of any of their communications with their attorney the law infers that they would want these communications revealed in order to carry out their wishes. Attorney Brown testimony will support the Will and bring about the result that Bob and Lisa intended.