Appeals court extends attorney-client privilege

People turn to attorneys for estate planning for a variety of reasons, not the least of which is the assurance that information exchanged in the process is protected from disclosure.

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. … ,” according to the American Bar Association. “This contributes to the trust that is the hallmark of the client-lawyer relationship.”

This level of confidentiality regarding a lawyer’s handling of estate planning was recently extended by an appeals court in Illinois, according to the website elderlawanswers.com.

“An estate planning attorney who is being sued by a client’s beneficiaries for legal malpractice can assert attorney-client privilege on correspondence between the attorney and the client’s bank that took place before the client’s death because the bank was acting as an agent for the client, according to an Illinois appeals court,” the site stated.

The attorney in question, Frank Greenfield, drafted wills and trusts for a husband and wife, Leonard and Muriel Perry.

“Mr. Perry’s will gave Mrs. Perry a power of appointment,” according to the article. “After Mr. Perry died, Mr. Greenfield amended Mrs. Perry’s will for her, but he forgot to include language indicating she was using her power of appointment. Mr. Greenfield realized his error after Mrs. Perry died, and he notified the beneficiaries.

“A group of beneficiaries sued Mr. Greenfield for legal malpractice, claiming that his error deprived them of money Mrs. Perry intended them to receive. The beneficiaries filed discovery requests, and Mr. Greenfield claimed attorney-client privilege on several documents, including correspondence with the bank that was the co-trustee of Mrs. Perry’s trust. The beneficiaries attempted to subpoena the bank to produce the documents, but the bank also refused. The trial court issued sanctions against the Mr. Greenfield for failing to comply with discovery. Mr. Greenfield appealed.”

The appeals court ruled in the lawyer’s favor, in part, siding with him that correspondence with the bank was privileged communication as long as Muriel Perry was alive.