Attorney-Client Privilege in Probate Litigation

Attorney-Client Privilege Basics

Courts have long recognized the existence of the attorney-client privilege. Rule 1.6 of the Michigan Rules of Professional Conduct incorporates the privilege. The Rule states in part that “a lawyer shall not knowingly reveal a confidence or secret of a client.”

MRPC 1.6 contains additional provisions and exceptions that clarify the extent of the privilege. For example, one exception permits disclosure when the client consents or when required by law or by court order. Probate litigation is not specifically addressed in the exceptions.

Historically, courts recognized the privilege and the prohibition on compelling a lawyer to testify against a client in order to make certain that people could obtain meaningful legal advice. In the absence of complete disclosure by a client, an attorney has no basis for providing accurate and competent legal counsel. The privilege ensures that a client can make full disclosure to a lawyer without any fear that the information will be revealed to others.

Attorney Testimony in Probate Litigation

When a dispute arises over a decedent’s estate, Will, or trust, the decedent’s communications to their attorney may be relevant in a court action to resolve issues in probate litigation. If that occurs, special rules apply, due to the applicability of the attorney-client privilege to the decedent’s communications with their lawyer.

Under Michigan law, the attorney-client privilege survives the death of the client, so privileged information does not lose protection when the client passes away. The Supreme Court of the United States has also recognized this principle.

Michigan court decisions establish that the personal representative of an estate has authority to waive the privilege, just as the client could waive the privilege while living. However, a waiver by a personal representative must be for the benefit or protection of the estate. The waiver authority does not apply if disclosure of the information would diminish or harm the estate.

Michigan court decisions also recognize that the attorney-client privilege does not apply in a Will or trust contest when the communications in question relate to a deceased client’s testamentary intentions. This exception is sometimes referred to as the testamentary exception to the privilege. If circumstances fit the exception criteria, a waiver by the personal representative is not necessary.

Other situations arise in probate litigation that create questions involving application of the attorney-client privilege. In addition to the rules explained above, other exceptions or legal rules may apply. Any circumstances that involve communications between an attorney and client present complex issues for the court to address. The facts in each case will determine the outcome of questions relating to attorney-client privilege.

Practical Effect of Attorney-Client Privilege in Probate Litigation

A lawyer must always abide by the provisions of the Rules of Professional Conduct, including the rule concerning attorney-client privilege. That requirement applies in probate litigation, even if the decedent’s lawyer may know facts relevant to the issues in the case. An attorney who violates any of the Rules of Professional Conduct faces severe potential consequences, including loss of the license to practice law.

Due to the ethics requirements relating to attorney-client privilege, an attorney who advised a decedent concerning estate matters is unlikely to disclose information voluntarily to the parties, lawyers, or other persons interested in a court action. In many cases, the decedent’s lawyer retains legal counsel to represent them, to ensure that the attorney does not violate the ethical rules and laws relating to the privilege.

The judge in the case reviews the evidence to determine whether the attorney should be ordered to provide testimony or information. The court decides whether the nature of the testimony makes it eligible for waiver of the privilege by the personal representative, whether the testimony falls outside the privilege because it relates to the testamentary intent of the decedent, or whether it falls under another exception expressed in MRPC 1.6, court decisions, or a specific statute.

Most often, a decedent’s attorney provides information or testifies only pursuant to a judge’s decision and order following review of the circumstances. In the absence of a court order based on appropriate determinations, the decedent’s attorney may take the position that attorney-client privilege and their related ethical obligations prohibit them from providing any information relating to client communications.

Talk With an Experienced Michigan Probate Litigation Attorney

If you have questions about attorney-client privilege in probate litigation or need assistance with any matter involving an estate dispute, our experienced probate litigation lawyers at BRMM are here to help. Our extensive litigation experience enables us to help clients who encounter any issue involving a Michigan estate or probate court matter.