Attorney-client privilege is an important aspect of legal practice, and it is absolutely critical in estate planning matters. Privacy and confidentiality are essential for clients to have confidence in disclosing their most personal family and financial matters. Many people don’t fully understand the concept of attorney-client privilege or the measures attorneys take to protect client privacy.
Knowing how your attorney is safeguarding your personal information can help you feel more comfortable in the estate planning process. Let’s discuss the nature of the attorney-client privilege, how the privilege can be waived (sometimes unintentionally), and best practices for protecting your confidential information.
What is Attorney-Client Privilege?
Attorney-client privilege is a legal principle that keeps communications between a client and their attorney confidential in most circumstances. The rationale behind attorney-client privilege is that clients must feel comfortable disclosing sensitive information to their attorneys without fear that the attorney will choose—or be compelled—to share that information with other parties, including courts.
Privileged communications between a client and their attorney generally cannot be disclosed by the attorney unless the client consents.
In the context of estate planning, that means that clients can more comfortably:
- Speak candidly about their financial situation and concerns
- Talk about complicated family dynamics that affect the estate planning and decision-making process
- Discuss information about their health, relationships, or intentions
- Request advice about sensitive issues
In short, attorney-client privilege exists to protect the client, not the attorney. It applies when clients seek advice about their estate or share information for the purpose of estate planning. Michigan case law (Lorimer v. Lorimer) even says that attorney-client privilege survives the death of the client.
However, attorney-client privilege is not absolute; clients can waive the privilege, sometimes without even knowing it. If they do so, certain communications between them and their attorney will no longer be privileged and may be subject to disclosure.
How Can Attorney-Client Privilege be Waived?
One of the most common ways to waive attorney-client privilege is to introduce a third party into the discussion. For example, a client may ask to have their friend or an adult child present during an estate planning session for moral support or to take notes. Doing so would waive the attorney-client privilege for that session. Similarly, cc’ing a third party on an email with an attorney would waive the privilege for that communication.
That is relevant because if a legal dispute later arose over the estate plan, the communication for which the privilege was waived could be subject to discovery in a lawsuit. Information that was never intended to be public could be revealed in a way that damages family relationships.
Attorneys frequently represent married couples in their estate planning; those communications are privileged, as the spouse is not a “third party” to the representation. However, if a dispute later arises between the spouses, such as a divorce, one spouse may be likely to compel the attorney to reveal information shared during the joint representation.
A client can also intentionally waive attorney-client privilege for various reasons, such as to clarify their intent in taking certain actions (like disinheriting a child) or to give a trustee or executor information that would be helpful to them in fulfilling their duties.
The bottom line is that while attorney-client privilege is strong, it is not absolute. If you are concerned that your communications with your estate planning attorney may not be privileged, ask your attorney before disclosing sensitive information.
Best Practices for Protecting the Confidentiality of Your Estate Planning
You don’t need to tell your attorney to keep your personal information confidential; protecting client confidentiality is every attorney’s professional and ethical obligation.
But there are steps that you can take to further protect the confidentiality that the attorney-client privilege provides:
- Ask your attorney to provide in your engagement agreement information regarding when confidentiality rules do and do not apply. This will provide you with the clarity you need to understand whether a communication is privileged.
- Clarify who, exactly, the client is in the attorney-client relationship. Is it you? You and a spouse? Someone else?
- Whenever possible, hold private consultations with your attorney and do not cc third parties on emails or other communications.
- To the extent it is necessary to include family members in consultations with your attorney, do so in later consultations when you may not need to disclose confidential information. Ask your attorney to explain the scope of attorney-client privilege to your family members.
Work with an Experienced Estate Planning Attorney
The knowledgeable estate planning attorneys at Barron, Rosenberg, Mayoras & Mayoras uphold the highest ethical and professional standards in protecting client confidentiality.
Schedule a consultation today by calling (248) 641-7070 in Michigan or (941) 222-2199 in Florida to learn how we can assist you. You can also use our simple online contact form.