Waiver Of Attorney-Client Privileged Materials After Death Of Client

In affirming motion to quash administrative subpoena regarding decedent's communications with her attorney on disposition of her Indian trust allotments, declining to apply the federal attorney-client privilege (which recognized a limited exception, permitting access to communications concerning the preparation of the deceased client's will when relevant to litigation between parties who both claim through that very client’s will) and finding the applicable state's evidence law would not recognize the exception to the privilege as a matter of "generally accepted" state evidence law, in In re Estate of Covington, 450 F.3d 917 (9th Cir. May 25, 2006) (No. 04-35449)

Many jurisdictions, including many federal courts, provide an exception or waiver to the attorney-client privilege that applies when the case involves the "testamentary" intent of a deceased client as between contesting beneficiaries claiming under the same will. Several years ago, the Ninth Circuit considered whether and how this exception might apply when an applicable federal regulatory scheme left it unclear whether federal or state evidence law would apply.

In the case, when decedent Covington died, she left all of her Indian trust allotments to her great-grandson, bypassing her three living grandchildren. Two of the grandchildren contested the decedent’s will, alleging that she lacked testamentary capacity and was under undue influence when she prepared and executed the will with the assistance of the trial legal services office (“TLS”). This dispute over the will went before the U.S. Department of Interior’s Office of Hearings and Appeals (OHA), which was charged with determining Indian trust allotment disputes.

In administrative proceedings at the OHA, evidence was adduced that cast doubt on decedent’s state of mind and competency in the days before she executed the will. In light of this, the hearing officer (ALJ) approved a subpoena of decedent’s will preparation file from the TLS attorney who aided the decedent. The TLS refused to produce the documents claiming they were protected by attorney-client privilege and work product. The ALJ rejected these claims and directed production of the documents. The TLS filed a motion to quash the subpoena in the U.S. district court, which granted the motion. Covington, 450 F.3d at 919.

The Department of Interior appealed the district court’s grant of the motion to quash the subpoena. The parties agreed that if the federal rules of evidence applied, the federal attorney-client privilege “would not bar the admission of Covington's notes.” Covington, 450 F.3d at 921. If state evidence law applied, it remained to be determined whether Washington state evidence law would provide a waiver of the attorney-client privilege so that the attorney's notes and files on the decedent's will would be available. In the end, the circuit determined that the federal attorney-client privilege did not apply. Interpreting Washington state evidence law the circuit affirmed the district court’s quashing of the subpoena for the attorney's files and papers.

The circuit specifically rejected the government's argument that the federal privilege would apply in the OHA administrative proceedings. The court noted that FRE 501 “states that federal common law will apply unless ‘otherwise … provided.’ Here the regulations specifically adopt state evidentiary rules.” Covington, 450 F.3d at 93 (citations omitted)] The administrative hearing could not proceed under department administrative regulations, which granted an ALJ discretion to admit evidence that does not comport with state evidentiary rules.

The circuit noted that under the regulations, it must decide whether the applicable agency regulation “4.232 adopts federal or state evidentiary rules” and then determine under the particular evidence rules whether it “has incorporated the testamentary exception to the attorney-client privilege.” Covington, 450 F.3d at 921. The circuit determined that under that regulation, the ALJ lacked authority to subpoena privileged materials, as the federal privilege did not apply and the circuit determined that Washington state evidence law had not provided for a waiver of the the attorney-client privilege in certain instances of the death of the client.

This was a contrast to the Supreme Court's consideration of the scope of the privilege in Swidler & Berlin v. United States, 524 U.S. 399, 407, 411 (1998). In that case concerning applying attorney-client privilege after the client’s death (while being investigated in connection with obstruction of justice allegations), court noted:

“weighty reasons ... counsel in favor of posthumous application [of the attorney-client privilege]. 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....

Interpreted in the light of reason and experience, that body of [evidence] law requires that the attorney-client privilege prevent disclosure of the notes at issue in this case.”.
Swidler & Berlin v. United States, 524 U.S. at 407, 411 (1998).

The result in Covington provides an interesting contrast to other court's treatment of the general survivability of the privilege after death of the client under the federal privilege. As the issue in Covington was whether the privilege would be recognized for communications concerning a will by a deceased client relevant to litigation between parties who both claim through that very client’s will, other courts take on it have, in the absence of other regulations, allowed for breach of the federal privilege. See, e.g., Glover v. Patten, 165 U.S. 394, 406 (1897) ("statements made by the deceased to counsel respecting the execution of the will, or other similar document, are not privileged" in litigation between devisees under decedent’s will); United States v. Osborn, 561 F.2d 1334, 1340 (9th Cir. 1977) (attorney-client communications regarding preparation of client's will are privileged during the testator's lifetime and after death will remain privileged “unless sought to be disclosed in litigation between the testator's heirs, legatees, devisees, or other parties, all of whom claim under the deceased client”).

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