Does the Attorney-Client Privilege Continue to Apply After Your Death? Of Course It Does … Don’t Be So Sure.

by Reed Spellman
October 24th, 2014

Last month, the Maryland Court of Appeals formally recognized the testamentary exception to the attorney-client privilege. In Zook v. Pesce, 438 Md. 232 (2014), the high court reaffirmed a ninety-five-year old exception to the attorney-client privilege.

In 1919, the Maryland Court of Appeals in Benzinger v. Hemler, 134 Md. 581 (1919), found that an attorney who drafted the will of a decedent must testify as to “the transactions, circumstances, and instructions given” by the decedent regarding the preparation of the will including any communications between the decedent and the attorney. The Benzinger Court did not formally name this rule as the testamentary exception to the attorney-client privilege, but this short-hand terminology has been the generally accepted label ever since.

On May 16, 2014, the Court of Appeals revisited this issue in Zook. When Eugene D. Zook passed away in 2008, he left behind three adult children, Dennis Zook, Susan Pesce, and Mary Zook. Before his death, the decedent had retained the services of attorney Thomas P. Downs, to assist him with the preparation of his estate plan. In 2007 Mr. Zook executed the Eugene D. Zook Living Trust. Subsequently, in 2008, Mr. Zook decided to modify the terms of his living trust and executed an amended trust agreement. After Mr. Zook’s death, his family soon discovered that, while his estate was to be divided equally between his three children, one child, Mary Zook, the plaintiff, was to receive her share over a ten-year period, while the rest would receive their inheritance immediately.

Ms. Zook sued in an attempt to have the trust agreement declared void. In her complaint, Ms. Zook argued, among other things, that her father was not competent when he executed the amended trust agreement in 2008 and therefore the new trust agreement did not reflect his actual intent. In an attempt to prove her case, she demanded that she be allowed access to the prior trust agreements. Her request was denied by the trial court, arguing that she was not entitled to the prior trust agreement as it was protected from disclosure by the attorney-client privilege, a privilege that generally survives the death of the client.

The Court of Appeals in its decision, discusses the origins and necessity of the attorney-client privilege. The Court goes so far as to quote a U.S. Supreme Court case explaining the importance of upholding the privilege even after the death of the client in question:

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 as feared as disclosure during the client's lifetime.

Swidler & Berlin v. United States, 524 U.S. 399, 407, 118 S. Ct. 2081, 2086 (1998).

The Court of Appeals then discusses a number of exceptions to the rule, including the testamentary exception. The Court further acknowledges that the trial court even allowed the attorney who prepared the trust agreements to testify as to communications he had with the decedent regarding the preparation of the trust agreements, as well as the attorney’s perception of the decedent’s mental and physical condition at the time of execution of his estate planning documents.

So what about the trust agreement? Does the exception also apply to testamentary documents prepared by counsel and executed by the decedent but not in force when the decedent dies? The Court of Appeals found that such documents are subject to the exception and that Ms. Zook had a right under that exception to access the prior trust agreement. Unfortunately for Ms. Zook, the Count of Appeals also found that even though the trial court should not have denied her access to the prior trust agreement, admission of the document at trial would not have caused the trial court to alter its ultimate ruling.

In order to obtain appropriate and effective counsel, clients must be open and honest with their estate planning attorney. They must do so, however, with the knowledge that some or all of these private communications may become public if post mortem questions arise as to their actual intentions. The lesson here is that while the attorney-client privilege in Maryland is alive and well, there are pitfalls for the unwary and that ambiguous estate planning documents are more likely to lead to such exposure.

Reed Spellman is a senior counsel in Joseph, Greenwald & Laake’s Estates and Trusts practice. He counsels individuals and families in a wide range of estate planning and post-mortem planning issues, including anything from a simple will to advanced tax planning, as well as probate administration, trust administration, and estate tax filings and issues.

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