Many estate planning practitioners routinely engage in the joint representation of spouses in connection with their estate planning. A joint representation differs from the representation of a single client, and the attorney-client privilege is adjusted accordingly. Joint representations have long been found to preclude a claim that communications between the attorney and one of those being jointly represented are privileged as against the other client of the joint representation. Wallace v. Wallace, 216 NY 28 (1915) (following the rule set forth in Hurlburt v. Hurlburt, 128 NY 420 (1891)).

In explanations of a joint representation to spouses in the estate planning context, the rule of privilege regarding conversations and writings between the attorney and the spouses is often described in the following manner: All communications will be privileged as against third parties, but the attorney will not be permitted to honor any request by one spouse to keep information confidential from the other. As a general proposition, this is true and represents what many practitioners understand to be the scope of their duty to keep client confidences and the circumstances under which the practitioner may be forced to disclose what would ordinarily be privileged information. Engagement or retainer letters often incorporate this understanding.1 However, the enunciation of this "rule" or general understanding is not exactly an accurate statement, at least not as to certain third parties in a probate proceeding or will contest, as the recent case of Will of Donald Everett Axinn, Jan. 26, 2011, NYLJ 25 (col 2), illustrates.

Axinn involved a contested probate proceeding in which the decedent's children moved to compel the preliminary executors of the decedent's estate, one of whom was the decedent's surviving spouse, Joan Axinn, to produce (i) un-redacted photocopies of two letters between the decedent and the attorney-drafter and (ii) un-redacted photocopies of notes taken by the attorney-drafter during two separate in-person meetings with the decedent.

The attorney-drafter represented both the decedent and Joan, and the preliminary executors cross-moved for a protective order, arguing that the requested materials contained confidential communications concerning Joan's estate plan that were protected by the attorney client privilege and non-discoverable by the decedent's children, third parties to the representation. They also argued that the contents of Joan's will were privileged, even though production of the will was not requested.

Nassau County Surrogate Edward W. McCarty III had previously ruled that, since the first of the two meetings was attended by third parties, the attorney-client privilege had been waived and the notes were discoverable. As to the letters and the notes from the second meeting, the "starting point" of the Surrogate's analysis was an agreement the decedent and Joan entered into after the dates of the requested material, and which the court reviewed in camera. The agreement obligated the spouses to include certain provisions in their wills,2 and contained a rather standard provision that it would "inure to the benefit of and shall be binding upon the heirs, executors and administrators of the parties."

Though the attorney-drafter addressed the letters at issue to the decedent alone, both the letters and the attorney's notes referenced the agreement, and the Surrogate concluded that the agreement concerning a joint estate plan had been in place at the time of the correspondence and the second meeting to which the notes related. The inclusion of the quoted provision in the parties' agreement and the nature of the joint representation led the Surrogate to conclude that "Joan could not have had a reasonable expectation of privacy concerning the documents at issue" and found that the attorney-client privilege was inapplicable.

Privilege and Exception

The purpose of the attorney-client privilege is to ensure that one who seeks counsel's advice will be able to confide in the attorney fully and freely, without concern that his or her confidences will be exposed or disclosed to his or her legal detriment, and thereby permit the attorney to represent the client in the most effective manner. The general rule of attorney-client privilege is codified in Civil Practice Law Rules (CPLR) section 4503(a), which provides that communications between an attorney (or his employees) and a client cannot be disclosed in any future judicial proceeding provided (i) the communication was made in the course of professional employment (i.e., while the attorney or his employee was acting in a professional capacity), (ii) the communication was confidential in character and (iii) the privilege was not waived by the client.

As Surrogate McCarty noted in Axinn, CPLR §4503(b) contains an exception to the general rule of attorney-client privilege that specifically relates to wills, providing as follows:

In any action involving the probate, validity or construction of a will, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent (emphasis added).

There are two important points regarding this exception. First, it is limited to proceedings involving only the probate, validity or construction of a will. See e.g., Matter of Estate of Swantee, 394 NYS2d 547 (Surr. Ct. N.Y. Co. 1977) (CPLR §4503(b) inapplicable in proceeding to determine the validity of a claim against the estate). Second, the exception is only intended to allow disclosure of a deceased person's will, not the will of a living individual. See Matter of Estate of Johnson, 488 NYS2d 355 (Surr. Ct. N.Y. Co.1985) ("[CPLR §4503(b)]...has never...been held...or construed...to require the client or attorney to disclose information as to the preparation, execution, contents or revocation of the will of a living person") (emphasis added). Axinn involved each of these aspects: it was a probate proceeding, and the estate plan of a living person was implicated as well.

Living Persons

Matter of Freilich, 686 NYS2d 294 (Surr. Ct. Bronx Co. 1999), affirmed that it would indeed violate the attorney-client privilege to compel counsel, while the client is alive, to state whether the client had executed a will, or to deliver a draft will or notes made during a conversation with the client. The court also clarified that the attorney-client privilege is not implicated when the executed will of a living person is in the possession or control of that person, and its disclosure may be compelled in a civil proceeding. In most cases, however, privacy considerations will weigh heavily against disclosure. The general rule is that disclosure of a living person's will would be barred absent a strong showing of necessity. "[C]ompelling...disclosure is almost tantamount to directing individuals to divulge their private thoughts on a subject while they still have the opportunity to change their final acts..." 686 NYS2d at 297.

The ambulatory nature of a living person's will makes it irrelevant, and non-discoverable, in most civil proceedings. But the privacy and confidentiality concerns that disfavor disclosure are to be balanced against necessity. In Matter of Freilich, there was an allegation of undue influence and the court directed that the will be submitted for in camera inspection.

Further, joint representations which by their nature represent a departure from strict application of the attorney-client privilege provide another basis upon which a court may require disclosure of a living person's estate plan. The court in Matter of Newton, 309 NYS2d 284 (Surr. Ct. Nassau Co. 1970), held that in a dispute relating to an accounting proceeding that arose between the decedent's estate and the surviving spouse, the surviving spouse's will could be disclosed. There, the decedent's will created a marital trust for the widow equal to one-third of the decedent's net estate less any other property he gave her under his will. At issue was the widow's claim that the widow owned or the decedent had during life given her certain personal property, and which therefore should not be deducted in calculating the trust's value.

The fiduciaries of the decedent's estate sought production of the widow's will and two codicils. The court dismissed the widow's contention that the documents dealt with confidential matters protected by the attorney-client privilege, because the attorney's joint representation of both spouses "by its very nature" meant these would be disclosed to the decedent; the decedent and his wife had "both submitted information to the attorney to prepare wills for each...the husband supplied some of the information...on [wife's] behalf...and there are some mutual provisions" under both spouses' wills, which were executed simultaneously. Newton, 309 NYS2d at 286. As the controversy was between the widow and the decedent's estate, which was not considered a third party to the joint representation, the court found that the widow's documents were discoverable.

'Axinn' Builds on Law

Axinn picks up where Newton left off. Whereas Newton involved only the surviving spouse and the decedent's estate, Axinn involves litigation between the surviving spouse and the decedent's estate on the same side, and the decedent's descendants on the other. By allowing disclosure of conversations and documentation relevant to the decedent's estate but which also bear on the surviving spouse's estate plan, Surrogate McCarty would not find that what ordinarily would be discoverable pursuant to CPLR §4503(b) (as it bears on the decedent's probate matter) was nonetheless rendered privileged based on the fact these also implicated a living person's estate plan. In doing so, the court found that the surviving spouse's right to protect confidential information from disclosure to third parties to the joint representation, namely the decedent's descendants, was not absolute. Surrogate McCarty also relied on other cases involving joint representations of spouses, Matter of Swantee, 394 NYS2d 547 (Surr. Ct. N.Y. Co 1977), and Wallace v. Wallace, supra.

The Swantee court stated, "it has been held 'where two or more persons consult an attorney for their mutual benefit, that [the attorney-client privilege] cannot be invoked in any litigation which may thereafter arise between such persons or their descendants, but may be in any litigation between them and strangers...'" 394 NYS2d at 549-550, quoting from Oursler v. Armstrong, 170 NYS2d 458 (Sup. Ct. N.Y. Co. 1958), aff'd 8 AD2d 195 (1st Dept. 1959), rev'd on other grounds, 10 NY2d 385 (1961).

Neither Wallace nor Oursler involved a probate proceeding: One sought to enforce a contract and the other to impress a constructive trust. In each case there was an alleged agreement between the spouses to execute reciprocal or mutual irrevocable wills; after the first spouse's death, the survivor executed a new will inconsistent with the alleged agreement, and after the survivor's death, potential beneficiaries who suffered a detriment under the later will sought to produce the testimony of the attorney-drafter. In each case, the court allowed the testimony, finding that the attorney-client privilege did not attach when the husband and wife entered into a joint representation. Oursler introduced the element that, in certain circumstances, the parties' descendants are not to be treated as third parties to the joint representation.

In Axinn, it is unclear whether disclosure to the descendants would have been permitted in the absence of the parties' agreement, based strictly upon the nature of a joint representation, but this may be a possible outcome in other situations. That is not to say husbands and wives should seek separate estate planning counsel. In most cases, joint representation is still the most advantageous and practical means of obtaining estate planning services, and potential disclosure to children, and other descendants will not be viewed as a drawback.

Axinn does suggest that at least in some cases, care should be taken to clarify the limits of the attorney-client privilege and the parties' expectation of privacy vis-à-vis the parties' descendants. Particularly in cases involving joint representations of spouses in second or subsequent marriages, the attorney may wish to consider including in the engagement letter or in some other document specific language that the parties understand and intend that the attorney will not disclose any communications between the attorney and either or both of the spouses, or any information discussed in the course of the joint representation, to any third parties, including any descendants of the parties. It is not clear whether this would completely protect the spouses from disclosure, particularly in a probate proceeding, but it would provide definite proof that each party expected privacy and confidentiality.

The authors acknowledge assistance from Suzanne Thau with the research and writing of this article.

Footnotes

1. See ACTEC Engagement Letters (http://www.actec.org/public/EngagementLettersPublic.asp ) (last visited March 4, 2011).

2. Presumably this was a post-marital agreement of some kind, but the facts do not so specify

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