Summary: There are often multiple relatives and loved ones involved in the estate planning process. Does attorney-client privilege apply to a client’s entire family? The answer is no.
“Attorney-Client Privilege” is a rule related to the confidentiality of communication between a lawyer and client, when the lawyer is giving the client legal advice. This rule is designed to encourage clients to openly share information, which in turn allows lawyers to provide effective advice and representation.
In Georgia, the Georgia Bar Association Rules of Professional Conduct stipulates: “A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client gives informed consent” (Rule 1.6(a)). In other words, a lawyer cannot repeat the information discussed with his or her client, unless that client gives the lawyer permission to do so.
In estate planning, the issue of attorney-client privilege can be complicated, because often there are multiple relatives and loved ones involved. Does attorney-client privilege apply to a client’s entire family? The answer is no.
Attorney-client privilege exists between an attorney and his or her client. Attorneys cannot divulge their client’s secrets to spouses or family members, even if the relative tries to force the attorney to share the confidential information. So, for example, if a person hires an attorney to create a trust, the attorney cannot share the discussion surrounding that trust with the client’s friends or family members. That would be a violation of the attorney-client relationship. The attorney cannot even share the details of what is in the trust, and who the beneficiaries are, without the client’s permission. As a second example, a person hires an attorney to draft a will for them. While that client is still alive, and the will has not been probated, the client’s family members cannot pressure the attorney to share the details of the will. Again, sharing that sort of information would be a violation of the attorney-client relationship.
While attorney-client privilege shields clients from having relatives demanding private information, the greatest use of this privilege is to prevent information from being available to an opposing party during litigation. During litigation, there is a period called “discovery” when the parties can be forced to disclose discussions that they have had with family, friends, or other witnesses. As long as the attorney-client privilege remains intact, discussions with your attorney are not “discoverable.”
If a client brings a third party into the meeting with his or her attorney, however, the general rule is that the presence of that third party “waives” the attorney-client privilege. The information shared is no longer confidential, because another person (a non-client) is in the room. This means that the client might be forced to testify about the conversation and the third party also might be forced to testify about the conversation.
Clients often desire to bring family members and sometimes even friends into meetings with their attorneys. Often in an estate planning setting, it will be perfectly appropriate for this to occur because the associated risks are very small. There are some situations, however, when it is not advisable to waive attorney-client privilege. If your attorney asks you to have other people leave the room to preserve attorney-client privilege, make sure you understand the risks before deciding to let them stay.
If you are concerned about attorney-client privilege or have any questions about those privileges under Georgia law, contact Siedentopf Law via our website EstateLawAtlanta.com or call us today at (404) 736 – 6066.
© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.
For more articles like these, sign up for the Siedentopf Law newsletter
What Are Your Estate Planning Questions?
Atlanta estate planning items like health directives, wills, trusts and more can be overwhelming and confusing. Let us know your questions by submitting them through the form below, and we'll be in touch.