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Ethics Articles: Survival of Attorney Client Privilege

Survival of Attorney Client Privilege
By Thomas K. Byerley, Regulation Counsel
MBJ November 1998

    One of the cornerstones of legal ethics is the principle that all communications between a lawyer and a client are "privileged." The common-law privilege is intended to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." Upjohn Co v United States, 449 US 383 (1981).

    The lawyer-client privilege concept has been incorporated into Rule 1.6 of the Michigan Rules of Professional Conduct. MRPC 1.6(b) provides:

      "Except when permitted under paragraph (c), a lawyer shall not knowingly:

      (1) reveal a confidence or secret of a client;

      (2) use a confidence or secret of a client to the disadvantage of the client; or

      (3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure."

    Does this privilege survive the death of the client? May a lawyer reveal to beneficiaries, after the death of a testator, confidences learned by the lawyer when drafting the will?

    The "exceptions" to the lawyer-client privilege rule found in MRPC 1.6(c) do not provide much guidance. Those exceptions allow a lawyer to reveal:

      "(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;

      (2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;

      (3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

      (4) the intention of a client to commit a crime and the information necessary to prevent the crime; and

      (5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct."

    Michigan courts have traditionally held that the attorney-client privilege survives the death of the client. In Lorimer v Lorimer, 124 Mich 631 (1950), quoting Chirac v Reinicker, 11 Wheat 194, the Michigan Court of Appeals stated: "confidential communications between client and attorney are not to be revealed at any time." [Emphasis supplied]. The court further held that the privilege survives the death of the client and will be enforced as against third parties whose interests are adverse to those of the decedent client.

    A will contest is the one notable exception to the general rule that the privilege survives the death of the client. If there is a dispute over the terms of the will, the lawyer who was consulted or who drafted the will may sometimes be compelled to reveal certain confidential communications if those communications speak to the decedent's intentions regarding the disposition of the decedent's property.

    For over a hundred years, this country has embraced the testamentary exception. In Glover v Patten, 165 US 394 (1897), the United States Supreme Court recognized the testamentary exception and noted that testamentary disclosure was permissible because the privilege could be impliedly waived in order to fulfill the client's testamentary intent.

    In Eicholtz v Grunewald, 313 Mich 666 (1946), the Michigan Supreme Court was presented with this issue in an appeal of an estate matter. In that case, the Court affirmed the proposition that all communications between a lawyer and a client are privileged and that the client is the only individual that may waive that privilege. The court upheld the privilege after the death of the client, but did recognize that a personal representative of an estate may waive the attorney-client privilege on behalf of the deceased client only for the "protection of the estate, and not for the dissipation or the diminution thereof." [Citing McKinney v Kalamazoo-City Savings Bank, 244 Mich 246 (1928)]. The court noted that after the death of the testator "the principal reason for the privilege of secrecy no longer exists." 313 Mich 666 at 672.

    In criminal matters, courts throughout the country have reached inconsistent results, but the overwhelming majority of states have held that the attorney-client privilege survives the death of the client. In Michigan, Dixson v Quarles, 27 F Supp 50 (ED Mich 1985) clearly establishes that the privilege survives the death of a client in criminal cases. Other states have carved out additional exceptions to the general rule. For example, in Cohen v Jenkintown Cab Co, 357 A2d 689 (1976), the Pennsylvania Court of Appeals decided in a civil case that although the privilege "generally" survives death, it could make an exception where the interest of justice was compelling and the interest of the client in preserving confidence was insignificant.

    The U.S. Supreme Court was presented with the opportunity to address this issue during this past term. An independent counsel was appointed to investigate the suicide death of Deputy White House Counsel Vincent Foster. Foster had sought legal counsel from another lawyer shortly before his death and independent counsel sought to subpoena the hand-written notes of Foster's counsel. The counsel resisted the subpoena by citing the attorney-client privilege, and that issue made its way to the Supreme Court in Swidler & Berlin v United States, 118 S Ct 2081 (1998).

    In Swidler & Berlin, the Supreme Court resolved conflicting state holdings and held that the attorney-client privilege survives the death of the client. The Court stated:

      "Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of posthumous application. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be a feared as disclosure during the client's lifetime." 118 S Ct 2081 at 2086.

    Therefore, it is now clear that the attorney-client privilege survives the death of the client in almost all cases. A lawyer should always maintain the confidences and secrets of the client even after the death of the client, unless ordered otherwise by a court or unless another MRPC 1.6(c) exception applies.

    "Focus on Professional Responsibility" is presented as a monthly feature to address ethics, professionalism, and other regulatory issues affecting Michigan lawyers.