Eric Penzer, of Farrell Fritz, writes about how a decedent’s attorney client privilege can be waived, which was recently discussed by the Supreme Court of New York, Appellate Division, Fourth Judicial Department. Mr. Penzer’s article begins as follows:
“The attorney client privilege, the oldest among common-law evidentiary privileges, fosters the open dialogue between lawyer and client that is deemed essential to effective representation” (Spectrum Sys. Intern. Corp. v Chem. Bank, 78 NY2d 371, 377  [quotation marks and citations omitted]). While an otherwise privileged communication can lose the protections of the privilege by reason of waiver, either intentionally or inadvertently, two principles complicate application of the rules governing waiver in Surrogate’s Court proceedings. The first such principle is that the attorney client privilege belongs to the client and, generally speaking, only the client can waive the privilege (see generally Manufacturers and Traders Tr. Co. v Servotronics, Inc., 132 AD2d 392, 400 [4th Dept 1987] [“the attorney-client privilege belongs to the client and can be waived only by the client”]). The second such principle is that, in New York State, the privilege survives the death of the client (see Matter of Riconda, 90 NY2d 733, 740 ). While it is well established that the right to waive the privilege also survives the death of the client, case law is still developing concerning who can effectuate a post-death waiver and in what circumstances.
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.