Recent CA case confirms that a trustee's attorney-client correspondence generally stays with the office of trustee

In a recent case in the First Appellate District, Division Three, Court of Appeals, Fiduciary Trust International of California v. Conrad Lee Klein et. al (2017), the Court held that correspondence between an attorney and trustee-client is generally not privileged when it comes to being provided to a successor trustee.  In other words, the office of trustee generally holds the privilege and when a new trustee takes the office, then that person is entitled to all attorney-client correspondence by the predecessor trustee except in very limited circumstances.  Some of those limited situations could potentially exist when the trustee pays for his/her own separate counsel, out of personal funds (not trust funds), and takes steps to preserve the confidentiality of the communications.  

This ruling is in line with prior rulings by the California Court of Appeals.  This case directly cites the seminal case for trustee attorney-client privilege, Moeller v. Superior Court (1997) 16 Cal.4th 1124.

Recent CA appellate case holds that all attorney-client confidential communications are presumed privileged

In a recent California 4th Appellate District case, DP Pham LLC v. C. Tucker Cheadle as administrator, etc., the Court of Appeals dealt with a matter involving attorney-client privilege.

The Court of Appeals made clear that “the attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit.”  The Appellate Court went on to determine that the privilege, as a matter of law, attaches to all confidential communications that exist between an attorney and a client no matter whether the information communicated is in fact privileged.   Accordingly, it is neither necessary nor appropriate to review a communication between a client and lawyer to determine whether the attorney-client privilege protects it.  The fact that a client and attorney engage in confidential communications makes the communications privileged. 

The Court of Appeals held that once a party makes a prima facie showing that a confidential communication was made between a client and attorney, then it is presumed the privilege applies.  The burden to the opponent to establish waiver, an exception, or that the privilege does not apply and the opponent cannot rely upon the content of the communication to prove its case.