As an estate planning law firm, some of the questions we frequently hear relate to attorney-client privilege. As they work through their estate plan and draft their documents, our clients want to know whether our conversations will be repeated to their family members. Alternatively, those family members might ask us about our conversations with our clients and what led to certain decisions about the client’s estate.
Understanding Attorney-Client Privilege
Attorney-client privilege relates to the confidentiality of information shared between a lawyer and their client. This rule requires attorneys to keep certain communication to themselves. They cannot share secrets, disclose legal advice, or gossip about any sensitive client information. Attorney-client privilege also applies to an attorney’s staff, such as a legal assistant, paralegal, or co-counsel. Anything a client shares with the attorney’s staff will also be privileged.
In order for an attorney and their client to develop a strong, successful relationship, there has to be a measure of honesty and trust. Attorney-client privilege is a two-way street. Clients are more likely to open up and share relevant details when they know the conversation will be kept confidential. Attorneys provide the best legal advice when their clients are upfront with information.
Attorney-Client Privilege After Death
If a client passes away, their conversations with their attorney are still protected by attorney-client privilege. Neither the attorney nor the attorney’s staff can divulge any attorney-client communication, whether that be to the client’s family, the public, or another individual.
So, for example, let’s say a client hires an estate planning attorney to draft a will for them. The client’s family wants to know the contents of that will. During the client’s lifetime, the attorney cannot reveal the details of the will – that information is protected under attorney-client privilege. Once the client passes away, let’s say the family wants to know why the client made certain decisions about their estate and who is inheriting certain items or assets. Again, the attorney cannot divulge the conversations; that communication is still protected by attorney-client privilege.
Exceptions to Attorney-Client Privilege
There are a few exceptions, as it relates to attorney-client privilege after the client’s death. First, an attorney can repeat information to a client’s family and loved ones if the client has given the attorney permission to do so. So, for example, let’s say a client creates a trust for a specific purpose; the client may give the attorney permission to talk to the trust beneficiary about why the trust was formed and what the client hoped to achieve.
Suppose a client is concerned about sharing the reasoning behind their estate planning decisions. In that case, they might consider leaving a Letter of Instruction, sometimes known as an ethical will or legacy letter, with their estate planning documents. The Letter of Instruction is a non-legal document through which you can share personal stories, communicate your hopes and values, or explain the intentions of your estate plan.
A second exception is waiving attorney-client privilege by having a non-client in the room while the attorney is sharing legal advice with their client. Because the conversation is not strictly between the attorney and the client, the information is no longer confidential and, therefore, not protected by attorney-client privilege. When a client is working on their estate plan, it is very common to bring a family member to the appointment. However, the client should double-check with the attorney before they inadvertently waive attorney-client privilege.
A third exception relates to competency. If someone is challenging a will or other estate document based on the client’s mindset at the time of signing, the attorney can speak to the client’s competency. The lawyer cannot share the details of their conversations, but they can talk about whether the client was competent in drafting the estate documents.
Have Additional Questions? Contact Our Estate Planning Team
If you have any additional questions about attorney-client privilege, or would like to speak with someone on Brian M. Douglas & Associates’ estate planning team, please contact us at (770) 933-9009 or via our online contact form. We would be happy to help.