Full Answer
The court held that the privilege could not be asserted and the documents had to be produced, because “the power to assert the attorney‑client privilege with respect to confidential communications a predecessor trustee has had with its attorney on matters concerning trust administration passes from the predecessor trustee to its successor ...
Oct 21, 2020 · First, the attorney should make it explicitly clear to the Trustee that the attorney-client privilege exists between the attorney and the office of the Trustee at the outset of the attorney-client relationship, and that if the Trustee is removed, suspended or resigns, they should expect that all communications they have had with the attorney will be turned over to a …
Jun 25, 2018 · Successor Trustee Gets Privileged Documents Even if Trust Says Otherwise. By Jeffrey S. Galvin on June 25, 2018 Posted in Attorney-Client Privilege, Orange County Superior Court, Private Professional Fiduciaries, Trust Administration, Trustee Removal. The attorney-client privilege in California belongs to the office of trustee, not to the incumbent in that office, …
Oct 21, 2020 · If demanded by the successor Trustee, the former trustee’s attorney could be compelled to turn over his complete case file, including all such communications with the former Trustee, no matter how damaging the content of those communications may …
An attorney cannot simultaneously represent both the trustee and the beneficiary with regard to the beneficiary's request for a discretionary distribution from the trustee, and the trustee's consideration of such request.Dec 1, 2014
A transfer of the attorney-client privilege will occur under those conditions because “the practical consequence of the transaction is that control of the enterprise has passed to the new owner along with the attorney-client privilege incident to it.”
confidential communicationsThis statute provides that: A client does not need to disclose any confidential communications between him/herself and his/her attorney that take place within the lawyer-client relationship; and. The client may also prevent the attorney (or another third party) from disclosing such confidential communications.
The general rule is that, by allowing a third party to be present for a lawyer-client conversation, the defendant waives the privilege. That generally means that the prosecution can force the third party to reveal the contents of the conversation.
Attorney-client privilege protects lawyers from being compelled to disclose your information to others. ... Confidentiality rules provide that attorneys are prohibited from disclosing any information for privacy reasons, unless it is generally known to others.Jan 6, 2017
Unlike a client's constitutional rights, which can only be intentionally and knowingly waived, the attorney-client privilege may be waived by a careless, unintentional or inadvertent disclosure.
9 Taboo Sayings You Should Never Tell Your LawyerI forgot I had an appointment. ... I didn't bring the documents related to my case. ... I have already done some of the work for you. ... My case will be easy money for you. ... I have already spoken with 5 other lawyers. ... Other lawyers don't have my best interests at heart.More items...•Mar 17, 2021
When a lawyer knows that a client has lied under oath, the lawyer is presented with a true dilemma. ... The lawyer cannot reveal the client's deceit without violating confidentiality; however, the lawyer cannot simply sit by and allow the testimony to stand without violating the duty of candor owed to the court.
Virtually all types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege, including oral communications and documentary communications like emails, letters, or even text messages. The communication must be confidential.
Courts generally focus on the "primary purpose" of a communication to determine if it is privileged. Informed waiver -- One way to get the attorney-client privilege destroyed is by agreeing to waive the privilege. A waiver is often required to be in writing, and can't be undone.Sep 27, 2012
Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime. Correct!
Here are our top ways to ruin the attorney-client privilege and have your embarrassing admissions get you in trouble.1 – Don't Seek Legal Advice. ... 2 – Seek Legal Advice from Someone Else's Lawyer. ... 3 – Share Information with a Third Party. ... 4 – Ask Your Attorney to Help You Commit a Crime.Mar 29, 2019
For example, when a Trustee is defending against an action for their own removal as trustee and/or for a surcharge upon them individually, there is a risk that all communications with his attorney will be revealed if the removal action is successful or if the Trustee resigns.
The attorney-client privilege provides an extremely valuable protection for communications between an attorney and their client. In a typical attorney-client relationship, a client can safely discuss strategies to initiate or defend against pending litigation with their attorney without the concern that those strategies will later be revealed to an opposing party. But when a Trustee hires an attorney to represent them in their capacity as trustee on matters pertaining to the administration of a Trust, the attorney’s “client” (for purposes of determining the holder of the attorney-client privilege) is not that individual Trustee, but instead is the office of the Trustee itself. [2] That distinction can create unexpected problems for predecessor Trustees who are no longer occupying the office of the Trustee.
Thus, the holding in FTIC makes clear that trustees should no longer assume that all of their attorney-client communications will remain confidential, and therefore, both trustee and attorney should work together to take all affirma tive steps necessary to safeguard these communications and to minimize the trustee’s potential exposure.
Klein [1] (“FTIC”), a former Trustee and their attorney may not be able to fully invoke the attorney-client privilege in order to withhold otherwise-protected communications from the successor Trustee of that same Trust.
The attorney-client privilege in California belongs to the office of trustee, not to the incumbent in that office, thus generally allowing successor trustees to obtain confidential communications that their predecessors had with counsel. We blogged last year about an appellate opinion that reinforced this concept.
For the most part, people who create trusts (known variously as settlors, trustors and grantors) are free to craft provisions that control how their trusts will operate, both as to distributive provisions and administrative aspects. California probate courts, when overseeing trusts, follow the intent of the settlor as expressed in the written trust instrument.
The attorney-client privilege in California belongs to the office of trustee, not to the incumbent in that office, thus generally allowing successor trustees to obtain confidential communications that their predecessors had with counsel. We blogged last year about an appellate opinion that reinforced this concept.
For the most part, people who create trusts (known variously as settlors, trustors and grantors) are free to craft provisions that control how their trusts will operate, both as to distributive provisions and administrative aspects. California probate courts, when overseeing trusts, follow the intent of the settlor as expressed in the written trust instrument.
Most state jurisdictions have adopted the entire-file approach, and the ABA opinion cites ethics opinions from Alaska, Arizona, Colorado, Iowa, Oregon and Virginia as examples of how it is applied.
Joy says it is “surprising that the committee did not take the opportunity to adopt the entire-file approach, which a majority of juris dictions considering the matter have adopted.”. And, he says, “it is surprising that the committee does not explain why it is rejecting the majority position.”.
If you signed the document, you should execute an amendment to remove that unless that is what you want to occur. You are charged with the knowledge of what is in the trust. You may want to speak with another estate planning attorney if an amendment is needed.
It's your trust. If you don't like what it says, have him change it or don't sign it. Sounds like a strange provision to me, but it may make perfect sense for the situation.
The provision is not illegal, in the sense that it is not a crime. Including that provision without first informing you, however, strikes me as a questionable practice in terms of legal ethics. In any event, you should ask your lawyer to strike that provision from the document if you do not want your attorney to have that power.
The attorney's action is likely not illegal; however, it is not ethical to appoint himself/herself as trustee without consulting with the client. If requested the attorney should redo the trust according to your wishes without charging you for it. It is important to have a successor trustee in case something happens to you and this can be another individual, attorney or an institution that handles trusts.
No it is not legal to do so without you authorization and I wouldn't sign it unless you want him to have that power. I would also consider hiring a more ethical attorney to finish your trust.
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=84898310526+0+0+0&WAISaction=retrieve#N#In California, an attorney who drafted the trust which names the attorney as trustee is subject to removal and no other reason is needed. See the above code 15642 (b) (6)
As a VA attorney, I am unable to speak specifically to CA law. However, in VA, a drafting attorney can be named as a successor trustee in the trust instrument.
Please note that I am not a CA attorney, but in most states, the answer is yes, the attorney can be named as trustee. In fact, this is not a terribly uncommon arrangement, though my personal stance is that I never accept appointment as a trustee unless the person is family or has no other options.
INTRODUCTION. A trustee is what the law calls a fiduciary - a person who is responsible for taking care of something that belongs to someone else. Under the law, fiduciaries owe legally enforceable duties to the people on whose behalf they handle property.
A trust can have more than one trustee at a time. Each co-trustee must decide for himself or herself how best to carry out his or her fiduciary duties. Beware that a co-trustee can be held responsible for another co-trustee’s breach of a fiduciary duty. Thus, it is important that all co-trustees pay close attention to everything that is done in the administration of the trust. If there is any question or problem, that issue should be communicated to the other co-trustee (s) immediately.
The agreement is normally set out in a written document which is called the trust instrument or the trust agreement . Your first and foremost duty as a trustee is to read, understand and faithfully follow the terms of the trust instrument, which are in essence the “rules” laid out by the trustmaker.
(A common form of trust used in estate planning is a “revocable” or “living” trust. )
A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate.
You, as trustee, are duty bound to deal with the trust property as a “prudent person” would deal with the property of another. Note that this is a standard of conduct rather than of performance. Your actions (or times of inaction) will be judged against what a reasonable person would have done in the same circumstances, given the same limitations to which you were subject, and armed with the same information that was at your disposal. If you conduct yourself properly, you will not be faulted if something bad happens, such as a decline in the value of trust assets. Acting reasonably in the circumstances is your basic job description; if you do that, you generally need not worry about being judged in the light of hindsight. Note that if you have or claim to have special expertise in connection with any facet of trust administration, you will be duty-bound to exercise that expertise. Thus, the standard for judging your job performance will take into account your special abilities (whether actual or claimed).
Under the Arizona Trust Code, adopted in Arizona in 2009, the trustee of an irrevocable trust (a trust that cannot be modified or amended, which most all living or revocable trusts become upon the death of the trustmaker), now has several important, affirmative notification and reporting requirements.