In California, does your attorney client privilege disappear shortly after you die?
Big news from the California Supreme Court today, in a case concerning the estate of Bing Crosby. In recent litigation between a record company and HLC, a partnership formed from the remnants of Crosby's business interests, the record company sought production of old letters and communications between Crosby and his lawyers. HLC asserted the privilege. The issue bubbled up to the high court. The record company argued that the privilege had terminated upon the wrap-up of Crosby's estate. HLC argued that the privilege had passed on to it.
The California Supremes noted that under California law, the attorney client privilege is strictly a creature of statute. California courts aren't free to fashion common law exceptions, etc. The high court looked at the statutes and decided that the key question was whether the original client had been Crosby himself or had been an unincorporated association of Crosby's business interests that had informally been called the "Bing Crosby Enterprises." The trial court had concluded the former and the high court saw no need to reverse that finding.
From there the result was obvious. Under the California statute, the privilege succeeded to the executor of the estate and then simply vanished upon the distribution of the estate. No privilege could be asserted by the partnership, even though it believed itself to be the business successor of Crosby.
This leaves some questions. You may recall that in Swidler & Berlin v. United States, 524 U.S. 399 (1998), a case dealing with the suicide of Vince Foster, the United States Supreme Court ruled that the privilege lives on after death. That's apparently not so in California. Which rule is better? Will the California legislature have to resolve that issue? What are the implications of this vanishing privilege? Very odd, it seems to me. Comments are open.