Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would specify that, notwithstanding that definition, a guardian or conservator who has an actual or apparent conflict with a client does not hold the privilege.

Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would specify that, notwithstanding that definition, a guardian or conservator who has an actual or apparent conflict with a client does not hold the privilege.

Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would clarify that the designation of certain persons as the holder of the privilege with respect to lawyer-client communications does not require or permit a lawyer to disclose or waive privilege regarding protected client information, as specified. This bill would also direct the California Law Revision Commission to conduct a study and prepare a report addressing who should hold the lawyer-client privilege if a client is a conservatee or ward. This bill would repeal that provision on January 1, 2024. specify that, notwithstanding that definition, a guardian or conservator who has an actual or apparent conflict with a client does not hold the privilege.

Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would clarify that if the conservatee or ward has appointed counsel or the conservatee has retained counsel to represent him or her in the conservatorship proceeding, the holder of the privilege is the conservatee or ward with respect to communications with that counsel. the designation of certain persons as the holder of the privilege with respect to lawyer-client communications does not require or permit a lawyer to disclose or waive privilege regarding protected client information, as specified. This bill would also direct the California Law Revision Commission to conduct a study and prepare a report addressing who holds should hold the lawyer-client privilege if a client is a conservatee or ward. This bill would repeal that provision on January 1, 2024.

Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would clarify that if the conservatee or ward has appointed counsel or the conservatee has retained counsel to represent him or her in the conservatorship proceeding, the holder of the privilege is the conservatee or ward with respect to communications with that counsel. This bill would also direct the California Law Revision Commission to conduct a study and prepare a report addressing who holds the lawyer-client privilege if a client is a conservatee or ward. This bill would repeal that provision on January 1, 2024.

Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would clarify that if the conservatee or ward has appointed counsel or the conservatee has retained counsel to represent him or her in the conservatorship proceeding, the holder of the privilege is the conservatee or ward with regard to a confidential communication between the conservatee or ward and his or her attorney in any case or controversy between a conservator and conservatee or a guardian and a ward. respect to communications with that counsel.

Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would clarify that the holder of the privilege is the conservatee or ward with regard to a confidential communication between the conservatee or ward and his or her attorney in any case or controversy between a conservator and conservatee or a guardian and a ward.

Existing law provides that the client of a lawyer has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer if the privilege is claimed by the holder of the privilege. Existing law defines holder of the privilege to include a guardian or conservator of the client, if the client has a guardian or conservator.

This bill would clarify that the holder of the privilege is the conservatee or ward in any case or controversy between a conservator and conservatee or a guardian and a ward.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1290

Author:(Obernolte)

As Amended Ver:August 20, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Specifies that, notwithstanding existing law providing that a guardian or conservator of a person who is represented by an attorney is deemed to be a holder of the privilege for attorney-client communications, the exceptional circumstances in which the guardian or conservator does not hold the privilege. Specifically, this bill provides that a guardian or conservator does not hold the privilege when the guardian or conservator has an actual or apparent conflict of interest with the client.

The Senate amendments delete the bill's provisions clarifying that in the case of a conservatee or ward who has appointed counsel, or a conservatee has retained counsel to represent him or her in the conservatorship proceeding, the conservatee or ward is the holder of the privilege with respect to communications with that counsel.

EXISTING LAW:

1. Allows the court to appoint a conservator to act on behalf of a person who is unable to adequately provide for his or her personal needs (a conservator of the person) or incapable of managing his or her property or other financial assets (a conservator of the estate). (Probate Code Section 1800 et seq.)
2. Provides that the establishment of a probate conservatorship is a judicial determination of the incapacity of the conservatee. (Civil Code Section 40(b).)
3. Allows the court to authorize the conservatee, as provided, to enter into transactions or types of transactions as may be appropriate in the circumstances of the particular conservatee and conservatorship estate. (Probate Code Section 1873(a).)
4. Allows the court to appoint private legal counsel for a ward, a proposed ward, a conservatee, or a proposed conservatee in any proceeding as provided if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person's interests. (Probate Code Section 1470(a).)
5. Provides that a client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. (Evidence Code Section 954.)
6. Defines "client" to mean person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent a) who himself so consults the lawyer or b) whose guardian or conservator so consults the lawyer on behalf of the incompetent. (Evidence Code Section 951.)
7. Defines "confidential communication between client and lawyer" to mean information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Evidence Code Section 952.)
8. Defines "holder of the privilege" to mean any of the following:
   1. The client, if the client has no guardian or conservator.
   2. A guardian or conservator of the client, if the client has a guardian or conservator.
   3. The personal representative of the client if the client is dead, including a personal representative appointed as provided.
   4. A successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence. (Evidence Code Section 953.)

FISCAL EFFECT: None

COMMENTS: California has three types of conservatorships under three different statutory schemes. Under the Probate Code, the court may appoint a probate conservator to act on behalf of a person who is unable to adequately provide for his or her personal needs (a conservator of the person) or incapable of managing his or her property or other financial assets (a conservator of the estate); in many instances, the court appoints both. Under the Lanterman-Petris-Short (LPS) Act, the court may appoint an LPS conservatorship for persons who are gravely disabled by mental illness and who were committed to a psychiatric facility because they were deemed a threat to themselves or to others. And under another provision of the Probate Code, the court may appoint a limited conservator for a developmentally disabled adult, designed to encourage the development of maximum self-reliance and independence of the individual. After a conservatorship is issued, there is a presumption under the law that the conservatee cannot hold the confidences from an attorney-client relationship because a conservatee is deemed to lack legal capacity (unless the court modifies or restores the legal capacity). Accordingly, under existing law, the conservator of the conservatee becomes the "holder" of the privilege of confidential communications between the conservatee and his or her attorney.

Background on attorney-client privilege. To encourage clients to have frank and open discussions with their attorneys, clients are allowed to assert attorney-client privilege – the right to 1) refuse to disclose confidential communications made between the attorney and the client; 2) prevent another from disclosing confidential communications made between the attorney and the client. (People v. Meredith (1981) 29 Cal.3d 682, 690.) Although the act of a party asserting attorney-client privilege results in the withholding of information from the court, as a matter of public policy, the legal system allows for privilege because it promotes adequate client-representation, and the enforcement of personal rights. (People v. Gionis (1995) 9 Cal.4th 1196, 1206-07.) Of course, a client is allowed to waive this privilege if he or she deems it is appropriate. However, in most cases, the client is the "holder" of the attorney-client privilege: the person entitled to assert (or waive) the privilege rights.

As previously stated, there is an unqualified rule that provides that when a client has a conservator, the holder of the privilege rests with the conservator. Under existing law, the conservator of a conservatee is the holder of the attorney-client privilege. In some limited situations (especially those that predate the conservatorship), this makes sense. For example, if a person represented by an attorney later becomes conserved, it makes sense for the conservator to become the "holder" of those privileged communications that occurred between the now-conservatee and his or her attorney that predates the conservatorship. After all, the conservator has a fiduciary duty to act in the best interests of the conservatee, and presumably, would "hold" those confidences to advance the conservatee's best interests.

However, this blanket rule – that a conservator holds all attorney-client privileges of a conservatee – begins to break down when we consider the rights afforded to a conservatee or a proposed conservatee to have appointed counsel (such as in proceedings that seek to terminate a conservatorship, or remove a conservator). For example, if a temporary conservatee petitions the court to remove the conservator, existing law allows the court to appoint counsel for the temporary conservatee. But since existing law provides that a conservator "hold" the privilege, the communication between the temporary conservatee and appointed counsel could be "held" by the conservator – the person the temporary conservatee is seeking to remove. While we would hope that a conservator would not assert his or her privilege to gain a procedural advantage, a plain reading of the statute appears to allow for it. This literal reading would appear to reach a result that is inconsistent with the general public policy aimed at protecting the rights of a conservatee. In other words, it's absurd. (Flores-Arellano v. INS (9th Cir. 1993) 5 F.3d 360, 364 (conc. opn. of Reinhardt, J.) ("in order to disregard the plain meaning of the statute, I would be required to conclude that the result is absurd").)

As amended in the Senate, the bill provides an exception to the general rule that a guardian or conservator of a client who is represented by counsel is the holder of the privilege. That general rule does not apply when the guardian or conservator has an actual or apparent conflict of interest with the client.

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334 FN: 0004448

 THIRD READING  

Bill No: AB 1290

Author: Obernolte (R)

Amended: 8/20/18 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 7/18/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 75-0, 4/27/17 (Consent) - See last page for vote

SUBJECT: Lawyer-client privilege: holder of the privilege

SOURCE: Conference of California Bar Associations

DIGEST:

This bill specifies, for purposes of the lawyer-client privilege, that if a guardian or conservator has an actual or apparent conflict of interest with the client, then the guardian or conservator does not hold the privilege.

Senate Floor Amendments of 8/20/18 provide that if the lawyer guardian / conservator has an actual or apparent conflict of interest with the client ward / conservatee, then the guardian or conservator does not hold the privilege.

ANALYSIS:

Existing law:

1. Provides for lawyer-client privilege, which provides the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:
   1. the holder of the privilege;
   2. a person who is authorized to claim the privilege by the holder of the privilege; or
   3. the person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. (Evid. Code Sec. 954.)
2. Provides that for the purposes of lawyer-client privilege, a “confidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Evid. Code Sec. 952.)
3. Provides that for the purpose of lawyer-client privilege, “holder of privilege” means:
   1. the client, if the client has no guardian or conservator;
   2. a guardian or conservator of the client, if the client has a guardian or conservator;
   3. the personal representative of the client if the client is dead, including a personal representative appointed pursuant to Section 12252 of the Probate Code; or
   4. a successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence. (Evid. Code Sec. 953.)
4. Provides that it is the duty of an attorney to maintain the confidence and preserve the secrets of his or her client. However, this does not prevent the attorney from revealing confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. (Bus. & Prof. Code Sec. 6068(e).)
5. Provides that a guardian or conservator may be removed for any of the following causes:
   1. failure to use ordinary care and diligence in the management of the estate;
   2. failure to file an inventory or an account within the time allowed by law or by court order;
   3. continued failure to perform duties or incapacity to perform duties suitably;
   4. conviction of a felony, whether before or after appointment as guardian or conservator;
   5. gross immorality;
   6. having such an interest adverse to the faithful performance of duties that there is an unreasonable risk that the guardian or conservator will fail faithfully to perform duties;
   7. in the case of a guardian of the estate or a conservator of the estate, insolvency or bankruptcy of the guardian or conservator;
   8. in the case of a conservator appointed by a court in another jurisdiction, removal because that person would not have been appointed in this state despite being eligible to serve under the law of this state;
   9. for violating requirements regarding the prescription of psychotropic medications or placement in mental health treatment facilities, as proscribed in Section 2356 of the Probate Code; or
   10. in any other case in which the court in its discretion determines that removal is in the best interests of the ward or conservatee. (Prob. Code Sec. 2650.)
6. Provides that the ward or conservatee, the spouse or domestic partner of the ward or conservatee, or any interested person may apply to by petition to the court to have the guardian or conservator removed and provides what the petition must contain. Any interested party, including the guardian or conservator, may appear at the hearing on the removal and support or oppose the petition. (Prob. Code Secs. 2651-2653.)

This bill specifies that if the guardian or conservator has an actual or apparent conflict of interest with the client, then the guardian or conservator does not hold the privilege.

Comments

Currently, Evidence Code Section 953 specifies that the guardian of a ward or conservator of a conservatee is the holder of the lawyer-client privilege for purposes of protecting confidential communications between the client ward / conservatee and his or her attorney. The prior version of this bill prohibited the lawyer from disclosing or waiving the privilege in violation of the lawyer’s duty of confidentiality.

The current version of the bill will likely have a greater impact. Whereas a lawyer is probably already prohibited from disclosing or waiving the privilege in violation of their duty of confidentiality, the bill now provides that if there is a misalignment in interests between a lawyer who acts as a guardian or conservator for their client, the privilege should not lie with the lawyer. Conservators with improper motives could easily obtain disclosure or consent from conservatees—a vulnerable population by definition—through manipulation or other unscrupulous behavior. Minor wards would also likely be subject to the same type of undue influence to waive the privilege in cases where the guardian is seeking a procedural or substantive advantage in a manner that conflicts with the minor’s interests.

The author’s office has worked closely with Assembly and Senate Judiciary Committee staff, as well as stakeholders, including Judicial Council and the California Judges Association, to ensure that this bill is acceptable to all parties.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 8/21/18)

Conference of California Bar Associations (source)

OPPOSITION: (Verified 8/21/18)

None received

ARGUMENTS IN SUPPORT: According to the author, “Currently, Evidence Code §953 specifies that the guardian of a ward or conservator of a conservatee is the holder of the lawyer-client privilege for purposes of protecting confidential communications between the client ward or conservatee and his or her attorney. The statutory language allows no exceptions to this authority, even when there is a legal dispute between the ward and guardian, or conservatee and conservator, such as proceedings to remove the guardian/conservator from those roles (see Prob. Code, §§2650-2655.) In those cases, designating the guardian/conservator as the holder of the privilege – thereby giving him or her apparent authority to waive the privilege and force disclosure of confidential lawyer/client information - is antithetical to the spirit and intent of the statute, and against the best interests of the client.”

ASSEMBLY FLOOR: 75-0, 4/27/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Calderon, Cervantes, Cooley, Gomez, Santiago

Prepared by: Josh Tosney / JUD. / (916) 651-4113

8/21/18 20:06:50

**** END ****

 THIRD READING  

Bill No: AB 1290

Author:

Amended: 8/22/17 in Senate

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 7/18/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 75-0, 4/27/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Conference of California Bar Associations

DIGEST:

This bill clarifies that attorney client privilege shall not be construed to require or permit an attorney to disclose, or waive privilege regarding, any information protected by the duty of confidentiality an attorney owes their client, even when the client is a conservatee or ward. Additionally, this bill requires the California Law Revision Commission to conduct a study and prepare a report addressing who should hold the lawyer-client privilege if a client is a conservatee or ward. Requires the report to be submitted on or before January 1, 2020.

ANALYSIS:

Existing law:

1. Provides for lawyer-client privilege, which provides the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:
   1. the holder of the privilege;
   2. a person who is authorized to claim the privilege by the holder of the privilege; or
   3. the person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. (Evid. Code Sec. 954.)
2. Provides that for the purposes of lawyer-client privilege, a “confidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Evid. Code Sec. 952.)
3. Provides that for the purpose of lawyer-client privilege, “holder of privilege” means:
   1. the client, if the client has no guardian or conservator;
   2. a guardian or conservator of the client, if the client has a guardian or conservator;
   3. the personal representative of the client if the client is dead, including a personal representative appointed pursuant to Section 12252 of the Probate Code; or
   4. a successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence. (Evid. Code Sec. 953.)
4. Provides that it is the duty of an attorney to maintain the confidence and preserve the secrets of his or her client. However, this does not prevent the attorney from revealing confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. (Bus. & Prof. Code Sec. 6068(e).)
5. Provides that a guardian or conservator may be removed for any of the following causes:
   1. failure to use ordinary care and diligence in the management of the estate;
   2. failure to file an inventory or an account within the time allowed by law or by court order;
   3. continued failure to perform duties or incapacity to perform duties suitably;
   4. conviction of a felony, whether before or after appointment as guardian or conservator;
   5. gross immorality;
   6. having such an interest adverse to the faithful performance of duties that there is an unreasonable risk that the guardian or conservator will fail faithfully to perform duties;
   7. in the case of a guardian of the estate or a conservator of the estate, insolvency or bankruptcy of the guardian or conservator;
   8. in the case of a conservator appointed by a court in another jurisdiction, removal because that person would not have been appointed in this state despite being eligible to serve under the law of this state;
   9. for violating requirements regarding the prescription of psychotropic medications or placement in mental health treatment facilities, as proscribed in Section 2356 of the Probate Code; or
   10. in any other case in which the court in its discretion determines that removal is in the best interests of the ward or conservatee. (Prob. Code Sec. 2650.)
6. Provides that the ward or conservatee, the spouse or domestic partner of the ward or conservatee, or any interested person may apply to by petition to the court to have the guardian or conservator removed and provides what the petition must contain. Any interested party, including the guardian or conservator, may appear at the hearing on the removal and support or oppose the petition. (Prob. Code Secs. 2651-2653.)

This bill:

1. Provides that attorney client privilege shall not be construed to require or permit an attorney to disclose, or waive privilege regarding, any information protected by the duty of confidentiality an attorney owes their client under subdivision (e) of Section 6068 of the Business and Professions Code.
2. Requires the California Law Revision Commission conduct a study and prepare a report, to be submitted on or before January 1, 2020, addressing who holds the lawyer-client privilege if a client is a conservatee or ward.

Comments

Purpose of the bill. AB 1290 will clarify in statute that a conservatee or ward represented by counsel can speak freely with that counsel, without fear that his or her confidential communications will be conveyed to the conservator or guardian because of a misleading provision of the Evidence Code saying that the conservator or guardian holds the attorney-client privilege.

Currently, Evidence Code §953 specifies that the guardian of a ward or conservator of a conservatee is the holder of the lawyer-client privilege for purposes of protecting confidential communications between the client ward or conservatee and his or her attorney. The statutory language allows no exceptions to this authority, even when there is a legal dispute between the ward and guardian, or conservatee and conservator, such as proceedings to remove the guardian/conservator from those roles (see Prob. Code, §§2650-2655.) In those cases, designating the guardian/conservator as the holder of the privilege – thereby giving him or her apparent authority to waive the privilege and force disclosure of confidential lawyer/client information - is antithetical to the spirit and intent of the statute, and against the best interests of the client.

As amended in the Senate Judiciary Committee. The author’s office worked with the Judicial Counsel to address their concerns regarding this bill as introduced. As amended, the bill will cross reference subdivision (e) of Section 6068 of the Business and Professions code, which provides the duty of confidentiality an attorney owes to their client. Both the Judicial Council and the California Conference of Bar Associations, the sponsor of this bill, have agreed that this language will protect a ward or conservatee’s rights in regards to their confidential communications with their attorney, while allowing the California Law Revision Commission the time needed to study who the proper holder of the attorney-client privilege is when the client is a conservatee or ward. As in print, this bill arguably addresses the author’s goals for this legislation, while addressing the Judicial Council’s concerns around unintended consequences. Moreover these amendments resulted in the Judicial Council withdrawing their opposition.

California Law Revision Commission Study. This bill additionally requires the California Law Revision Commission to conduct a study and prepare a report addressing who should hold the lawyer-client privilege if a client is a conservatee or ward. The report shall be completed and submitted to the Legislature on or before January 1, 2020. The author’s office has included this request for a study in order to assess how existing law provides for lawyer-client privilege when a client is a conservatee or ward and how to best address protecting a conservatee or ward’s privilege, while still ensuring the conservator or ward has access to the information they need to perform their duties. The ultimate goal for this study is to determine who should hold the lawyer-client privilege in instances where the client is a ward or conservatee.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/22/17)

Conference of California Bar Associations (source)

OPPOSITION: (Verified 8/22/17)

None received

ASSEMBLY FLOOR: 75-0, 4/27/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Calderon, Cervantes, Cooley, Gomez, Santiago

Prepared by: Marisa Shea / JUD. / (916) 651-4113

8/23/17 14:57:27

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1290 (Author:Obernolte)

Version: June 19, 2017

Hearing Date: June 27, 2017

Fiscal: No

Urgency: No

Consultant: MS

SUBJECT

Lawyer-client privilege: holder of the privilege

DESCRIPTION

This bill would provide that if a conservatee or ward has appointed counsel or the conservatee has retained counsel to represent him or her in the conservatorship proceeding, the conservatee or ward is the holder of the client privilege with respect to communications with counsel. This bill would also direct the California Law Revision Commission to conduct a study and prepare a report addressing who holds the lawyer-client privilege if a client is a conservatee or ward. This bill would repeal that provision on January 1, 2024.

BACKGROUND

The Evidence Code was enacted in 1965 (Chapter 299, Section 2, Statutes of 1965) at the recommendation of the California Law Revision Commission. Through its enactment, California replaced an incomplete, inconsistent, and confusing body of statutory and case law with a comprehensive statute.

The attorney-client privilege is a narrow evidentiary privilege that protects the confidentiality of communications between a client and his or her attorney. The attorney-client privilege was codified in the Evidence Code when it was first enacted in 1965. By assuring the client of the lawyer’s confidentiality, the privilege encourages the client to frankly disclose information to assist the lawyer in his/her representation. It specifically provides that the lawyer-client privilege does not indefinitely survive the client’s death, but instead remains in effect until the probate of the deceased client’s estate ends and the court discharges the client’s personal representative. This marked an apparent change in California law, as under previous case law, it seemed likely that the privilege continued to exist after the death of the client, and that no one had the authority to waive the privilege. (7 Cal. L. Rev. Comm. Reports 1 (1965) citing Collette v. Sarrasin (1920) 184 Cal. 283; Paley v. Superior Court (1955) 137 Cal.App.2d 450.) As the basis for this change, the Law Revision Commission Comment noted “[a]lthough there is good reason for maintaining the privilege while the estate is being administered – particularly if the estate is involved in litigation – there is little reason to preserve secrecy at the expense of excluding relevant evidence after the estate is wound up and the representative is discharged.” (7 Cal. L. Rev. Comm. Reports 1 (1965).)

In 2007, the Legislature enacted AB 403 (Tran, Chap. 388, Stats. 2007), which clarified that when a personal representative is reappointed for the subsequent administration of an estate pursuant to Probate Code Section 12252, the personal representative holds the decedent’s attorney-client privilege. AB 403 also directed the California Law Revision Commission (CLRC) to study “whether, and if so, under what circumstances, the attorney-client privilege should survive the death of the client.” In 2009, AB 1163 (Tran, Ch. 8, Stats. 200) implemented the results of the CLRC’s study, by clarifying that the attorney-client privilege is held by a deceased client’s personal representative appointed for subsequent estate administration after the original personal representative has been discharged. Additionally, AB 1163 provided that no attorney-client privilege exists for communications relevant to issues between parties who all claim through a deceased client in a nonprobate transfer.

This bill would further clarify existing law in regards to attorney client privilege by stating that if the conservatee or ward has appointed counsel or the conservatee has retained counsel to represent him or her in the conservatorship proceeding, the conservatee or ward is the holder of the privilege with respect to communications with that counsel. This bill would additionally direct the California Law Revision Commission to conduct a study and prepare a report addressing who should hold the lawyer-client privilege if a client is a conservatee or ward.

CHANGES TO EXISTING LAW

Existing law provides for lawyer-client privilege, which provides the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

• the holder of the privilege;
• a person who is authorized to claim the privilege by the holder of the privilege; or
• the person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. (Evid. Code Sec. 954.)

Existing law provides that for the purposes of lawyer-client privilege, a “confidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Evid. Code Sec. 952.)

Existing law provides that for the purpose of lawyer-client privilege, “holder of privilege” means:

• the client, if the client has no guardian or conservator;
• a guardian or conservator of the client, if the client has a guardian or conservator;
• the personal representative of the client if the client is dead, including a personal representative appointed pursuant to Section 12252 of the Probate Code; or
• a successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence. (Evid. Code Sec. 953.)

Existing law provides that it is the duty of an attorney to maintain the confidence and preserve the secrets of his or her client. However, this does not prevent the attorney from revealing confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. (Bus. & Prof. Code Sec. 6068(e).)

Existing law provides a guardian or conservator may be removed for any of the following causes:

• failure to use ordinary care and diligence in the management of the estate;
• failure to file an inventory or an account within the time allowed by law or by court order;
• continued failure to perform duties or incapacity to perform duties suitably;
• conviction of a felony, whether before or after appointment as guardian or conservator;
• gross immorality;
• having such an interest adverse to the faithful performance of duties that there is an unreasonable risk that the guardian or conservator will fail faithfully to perform duties;
• in the case of a guardian of the estate or a conservator of the estate, insolvency or bankruptcy of the guardian or conservator;
• in the case of a conservator appointed by a court in another jurisdiction, removal because that person would not have been appointed in this state despite being eligible to serve under the law of this state;
• for violating requirements regarding the prescription of psychotropic medications or placement in mental health treatment facilities, as proscribed in Section 2356 of the Probate Code; or
• in any other case in which the court in its discretion determines that removal is in the best interests of the ward or conservatee. (Prob. Code Sec. 2650.)

Existing law provides that the ward or conservatee, the spouse or domestic partner of the ward or conservatee, or any interested person may apply to by petition to the court to have the guardian or conservator removed and provides what the petition must contain. Any interested party, including the guardian or conservator, may appear at the hearing on the removal and support or oppose the petition. (Prob. Code Secs. 2651-2653.)

This bill would provide that if the conservatee or ward has appointed counsel or the conservatee has retained counsel to represent him or her in the conservatorship proceeding, the conservatee or ward is the holder of the privilege with respect to communications with that counsel.

This bill would provide that the California Law Revision Commission shall conduct a study and prepare a report addressing who holds the lawyer-client privilege if a client is a conservatee or ward. The report shall be submitted on or before January 1, 2020 and this section shall be repealed on January 1, 2024, in compliance with the Government Code as provided.

COMMENT

1. Stated need for this bill

According to the Author:

AB 1290 will clarify in statute that a conservatee or ward represented by counsel can speak freely with that counsel, without fear that his or her confidential communications will be conveyed to the conservator or guardian because of a misleading provision of the Evidence Code saying that the conservator or guardian holds the attorney-client privilege.

Currently, Evidence Code §953 specifies that the guardian of a ward or conservator of a conservatee is the holder of the lawyer-client privilege for purposes of protecting confidential communications between the client ward or conservatee and his or her attorney. The statutory language allows no exceptions to this authority, even when there is a legal dispute between the ward and guardian, or conservatee and conservator, such as proceedings to remove the guardian/conservator from those roles (see Prob. Code, §§2650-2655.) In those cases, designating the guardian/conservator as the holder of the privilege – thereby giving him or her apparent authority to waive the privilege and force disclosure of confidential lawyer/client information - is antithetical to the spirit and intent of the statute, and against the best interests of the client.

AB 1290 will make clear that where a conservatee or ward has their own counsel, the attorney-client privilege lies with the client conservatee or ward, protecting all confidential communications between the conservatee/ward and his or her counsel.

1. Clarifying lawyer-client privilege as it relates to conservatees/wards

Existing law states that a guardian or conservator of the client is the holder of the lawyer-client privilege. (Evid. Code Sec. 953.) This bill would clarify the Evidence Code Section 953 by adding subdivision (e) stating that if the conservatee or ward has appointed counsel or a conservatee has retained counsel to represent him or her in the conservatorship proceeding, the conservatee or ward is the holder of the privilege with respect to communications with that counsel.

According to the Conference of California Bar Associations, the sponsor of this bill:

AB 1290 would clarify that while a guardian or conservator appropriately holds the lawyer-client privilege in most legal matters involving the ward or conservatee, because the guardian or conservator owes a fiduciary relationship to the ward or conservatee and stands in the shoes thereof, such a power is not appropriate in instances where the ward or conservatee has private counsel. In those cases, the attorney/client privilege must follow the attorney’s duty of confidentiality to the actual client ward or conservatee.

Currently, Evidence Code §953 specifies that the guardian of a ward or conservator of a conservatee is the holder of the lawyer-client privilege for purposes of protecting confidential communications between the client ward or conservatee and his or her attorney. The statutory language allows no exceptions to this authority. However, where there is a legal dispute between the ward and guardian, or conservatee and conservator, such as proceedings to remove the guardian/conservator from those roles (see Prob. Code, §§2650-2655), the interests of the conservatee/ward and the conservator/guardian diverge. In those cases, designating the guardian/conservator as the holder of the privilege – thereby giving him or her apparent authority to waive the privilege and force disclosure of confidential lawyer/client information is antithetical to the spirit and intent of the statute, and against the best interests of the client.

Even assuming the attorney’s duty of confidentiality to his or her client under Business and Professions Code §6068(e) protects the attorney who refuses to provide confidential information to the guardian/conservator pursuant to the privilege under this subdivision, there is too great a risk that an attorney will rely on the unequivocal language of the statute and unknowingly violate that duty. AB 1290 will protect the sanctity of the attorney-client relationship in such situations by making clear that the duty of confidentiality is paramount.

1. California Law Revision Commission Study

This bill additionally would require the California Law Revision Commission to conduct a study and prepare a report addressing who holds the lawyer-client privilege if a client is a conservatee or ward. The report shall be completed and submitted to the legislature on or before January 1, 2020. The Author’s office has included this request for a study in order to assess how existing law provides for lawyer-client privilege when a client is a conservatee or ward and how to best address protecting a conservatee or ward’s privilege, while still ensuring the conservator or ward has access to the information they need to perform their duties. The ultimate goal for this study is to determine who should hold the lawyer-client privilege in instances where the client is a ward or conservatee, and ensure the changes of this are meeting the goals of the bill as discussed in Comment 2.

A drafting error resulted in this language stating “who holds the lawyer-client privilege.” The author requests an amendment to ensure the study addresses the question of who should hold the lawyer-client privilege.

Proposed amendment:

On page 2, line 23 strike “holds” and insert “should hold.”

1. Concerns regarding unintended consequences

In opposition, the Judicial Council of California writes:

As a preliminary matter, the Judicial Council believes that the underlying issue presented by the bill -- who should hold the attorney-client privilege when the client is a conservatee or ward -- is highly complex. Although the existing statute’s blanket transfer of that authority to a guardian or conservator presents problems, these are not easy to isolate, let alone amenable to an easy legislative fix. The proposed amendments to Evidence Code section 953 in AB 1290 presuppose answers to unresolved questions of law and policy regarding the attorney-client relationship, the conservatee’s legal capacity, and the authority of a privilege holder who is not also the client. The Judicial Council believes that deeper examination of these issues should precede the enactment of substantive legislation in this area. That is why the council supports Section 2 of the bill (as proposed to be amended), which would require the CLRC to conduct a study and report on the question of who should hold the lawyer-client privilege if the client is a conservatee or ward.

Assuming that the identified problem exists under current law, the Judicial Council has a number of concerns with AB 1290’s proposed solution in Section 1 of the bill. First, the bill fails to address the critical question of the capacity of the individual conservatee or ward to exercise the privilege. Granting a conservatee without the actual ability to understand and meaningfully invoke the privilege the legal capacity (and responsibility) to claim it does not solve the problem and subjects the conservatee to an unnecessary risk of harm. It is also important to note that a minor typically lacks the legal capacity to form an attorney-client relationship except through a guardian, including a guardian ad litem. In the absence of such a relationship, it is not clear how the privilege could exist.

In either scenario, the current version of AB 1290 would leave many, if not most, wards and conservatees defenseless against the very harm the bill is designed to address. Nothing in the bill would protect a conservatee or ward with counsel from unwittingly waiving the privilege. By definition, conservatees are a vulnerable population. Conservators with improper motives could easily obtain disclosure or consent from conservatees through manipulation or other unscrupulous behavior. Minor wards would also likely be subject to the same type of undue influence to waive the privilege in cases where the guardian is seeking a procedural or substantive advantage.

In response to the Judicial Council’s concerns, the Author has agreed to amend the bill to strike the provision providing “if the conservatee or ward has appointed counsel or the conservatee has retained counsel to represent him or her in the conservatorship proceeding, the conservatee or ward is the holder of the privilege with respect to communications with that counsel.” Instead, the bill would provide “this section shall not be construed to require or permit an attorney to disclose, or waive privilege, regarding, any information protected by subdivision (e) of Section 6068 of the Business and Professions Code.”

The cross-reference provided in the proposed language references the duty of confidentiality an attorney owes to their client. Both the Judicial Council and the Conference of California Bar Associations have agreed that this proposed language will protect a ward or conservatee’s rights in regards to their confidential communications with their attorney, while allowing the California Law Revision Commission the time needed to study who the proper holder of the attorney-client privilege is when the client is a conservatee or ward. This proposal arguably addresses the Author’s goals for this legislation, while addressing the Judicial Council’s concerns around unintended consequences.

Proposed amendments:

On page 2, line 6 strike “conservator, except as provided in subdivision (e).” and insert “conservator.”

On page 2, strike lines 14 through 17 and insert:

(e) This section shall not be construed to require or permit an attorney to disclose, or waive privilege regarding, any information protected by subdivision (e) of Section 6068 of the Business and Professions Code.

Support: None Known

Opposition: Judicial Council of California

HISTORY

Source: Conference of California Bar Associations

Related Pending Legislation: None Known

Prior Legislation:

AB 1163 (Tran, Ch. 8, Stats. 2009) See Background.

AB 403 (Tran, Ch. 388, Stats. 2007) See Background.

Prior Vote:

Assembly Floor (Ayes 75, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

Date of Hearing: April 18, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1290

Author:(Obernolte) – As Amended Ver:April 6, 2017

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: CONSERVATORSHIP: HOLDER OF PRIVILEGE

KEY ISSUE: IN ORDER TO PROTECT A CONSERVATEE AGAINST AN INAPPROPRIATE DISCLOSURE OF CONFIDENTIAL COMMUNICATIONS MADE BETWEEN THE CONSERVATEE AND HIS OR HER ATTORNEY, SHOULD A CONSERVATEE BE THE HOLDER OF THE PRIVILEGE IN CERTAIN ATTORNEY-CLIENT RELATIONSHIPS?

SYNOPSIS

California has three types of conservatorships under three different statutory schemes. Under the Probate Code, the court may appoint a probate conservator to act on behalf of a person who is unable to adequately provide for his or her personal needs (a conservator of the person) or incapable of managing his or her property or other financial assets (a conservator of the estate); in many instances, the court appoints both. Under the Lanterman-Petris-Short Act, the court may appoint an LPS conservatorship for persons who are gravely disabled by mental illness and who were committed to a psychiatric facility because they were deemed a threat to themselves or to others. And under another provision of the Probate Code, the court may appoint a limited conservator for a developmentally disabled adult, designed to encourage the development of maximum self-reliance and independence of the individual. After a conservatorship is issued, there is a presumption under the law that the conservatee cannot hold the confidences from an attorney-client relationship because a conservatee is deemed to lack legal capacity (unless the court modifies or restores the legal capacity). Accordingly, under existing law, the conservator of the conservatee becomes the “holder” of the privilege of confidential communications between the conservatee and his or her attorney.

While this rule may make sense some of the time, it makes less sense in instances when there is a controversy between the conservatee and the conservator—such as in a conservator-removal, or a conservatorship-termination proceeding. Accordingly, this bill, as proposed to be amended, provides that if the conservatee has counsel appointed for him or her, or the conservatee has retained counsel to represent the conservatee in the conservatorship proceeding, the conservatee is the holder of the privilege with respect to communications with that counsel. A similar rule is applied to wards whom are appointed counsel. Those amendments are reflected in the summary and analysis below.  This bill is sponsored by the Conference of California Bar Associations and has no opposition on file.

SUMMARY: Specifies instances for when a conservator is deemed a holder of the privilege for attorney-client communications. Specifically, this bill provides that if the conservatee or ward has counsel appointed for him or her, or the conservatee has retained counsel to represent the conservatee in the conservatorship proceeding, the conservatee or ward is the holder of the privilege with respect to communications with that counsel.

EXISTING LAW:

1. Allows the court to appoint a conservator to act on behalf of a person who is unable to adequately provide for his or her personal needs (a conservator of the person) or incapable of managing his or her property or other financial assets (a conservator of the estate). (Probate Code Section 1800 et seq.)
2. Provides that the establishment of a probate conservatorship is a judicial determination of the incapacity of the conservatee. (Civil Code Section 40 (b).)
3. Allows the court to authorize the conservatee, as provided, to enter into transactions or types of transactions as may be appropriate in the circumstances of the particular conservatee and conservatorship estate. (Probate Code Section 1873 (a).)
4. Allows the court to appoint private legal counsel for a ward, a proposed ward, a conservatee, or a proposed conservatee in any proceeding as provided if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests. (Probate Code Section 1470 (a).)
5. Provides that if a conservatee, proposed conservatee, or person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the interest of that person in the following proceedings under this division:
6. A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.
7. A proceeding to terminate the conservatorship.
8. A proceeding to remove the conservator.
9. A proceeding for a court order affecting the legal capacity of the conservatee.
10. A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence. (Probate Code Section 1471 (a).)
11. Provides that a client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer. (Evidence Code Section 954.)
12. Defines “client” to mean person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer on behalf of the incompetent. (Evidence Code Section 951.)
13. Defines “confidential communication between client and lawyer” to mean information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. (Evidence Code Section 952.)
14. Provides that the privilege may be claimed by the following:
    1. The holder of the privilege;
    2. A person who is authorized to claim the privilege by the holder of the privilege; or
    3. The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure, as provided. (Evidence Code Section 954.)
15. Defines “holder of the privilege” to mean any of the following:
    1. The client, if the client has no guardian or conservator.
    2. A guardian or conservator of the client, if the client has a guardian or conservator.
    3. The personal representative of the client if the client is dead, including a personal representative appointed as provided.
    4. A successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence. (Evidence Code Section 953.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: California has three types of conservatorships under three different statutory schemes. Under the Probate Code, the court may appoint a probate conservator to act on behalf of a person who is unable to adequately provide for his or her personal needs (a conservator of the person) or incapable of managing his or her property or other financial assets (a conservator of the estate); in many instances, the court appoints both. Under the Lanterman-Petris-Short Act, the court may appoint an LPS conservatorship for persons who are gravely disabled by mental illness and who were committed to a psychiatric facility because they were deemed a threat to themselves or to others. And under another provision of the Probate Code, the court may appoint a limited conservator for a developmentally disabled adult, designed to encourage the development of maximum self-reliance and independence of the individual. After a conservatorship is issued, there is a presumption under the law that the conservatee cannot hold the confidences from an attorney-client relationship because a conservatee is deemed to lack legal capacity (unless the court modifies or restores the legal capacity). Accordingly, under existing law, the conservator of the conservatee becomes the “holder” of the privilege of confidential communications between the conservatee and his or her attorney.

Background on attorney-client privilege. To encourage clients to have frank and open discussions with their attorneys, clients are allowed to assert attorney-client privilege—the right to (1) refuse to disclose confidential communications made between the attorney and the client; (2) prevent another from disclosing confidential communications made between the attorney and the client. (People v. Meredith (1981) 29 Cal.3d 682, 690.) Although the act of a party asserting attorney-client privilege results in the withholding of information from the court, as a matter of public policy, the legal system allows for privilege because it promotes adequate client-representation, and the enforcement of personal rights. (People v. Gionis (1995) 9 Cal.4th 1196, 1206-07.) Of course, a client is allowed to waive this privilege if he or she deems it is appropriate. However, in most cases, the client is the “holder” of the attorney-client privilege: the person entitled to assert (or waive) the privilege rights.

As previously stated, there is an unqualified rule that provides that when a client has a conservator, the holder of the privilege rests with the conservator. Under existing law, the conservator of a conservatee is the holder of the attorney-client privilege. In some limited situations (especially those that predate the conservatorship), this makes sense. For example, if a person represented by an attorney later becomes conserved, it makes sense for the conservator to become the “holder” of those privileged communications that occurred between the now-conservatee and his or her attorney that predates the conservatorship. After all, the conservator has a fiduciary duty to act in the best interests of the conservatee, and presumably, would “hold” those confidences to advance the conservatee’s best interests.

However, this blanket rule—that a conservator holds all attorney-client privileges of a conservatee—begins to break down when we consider the rights afforded to a conservatee or a proposed conservatee to have appointed counsel (such as in proceedings that seek to terminate a conservatorship, or remove a conservator). For example, if a temporary conservatee petitions the court to remove the conservator, existing law allows the court to appoint counsel for the temporary conservatee. But since existing law provides that a conservator “hold” the privilege, the communication between the temporary conservatee and appointed counsel could be “held” by the conservator—the person the temporary conservatee is seeking to remove. While we would hope that a conservator would not assert his or her privilege to gain a procedural advantage, a plain reading of the statute appears to allow for it. This literal reading would appear to reach a result that is inconsistent with the general public policy aimed at protecting the rights of a conservatee. In other words, it’s absurd. (Flores-Arellano v. INS (9th Cir. 1993) 5 F.3d 360, 364 (conc. opn. of Reinhardt, J.) (“in order to disregard the plain meaning of the statute, I would be required to conclude that the result is absurd”).)

Summary of this bill. Accordingly, this bill creates an exception to the conservator privilege-holder rule. As proposed to be amended, this bill provides that if the conservatee has counsel appointed for him or her, or the conservatee has retained counsel to represent the conservatee in the conservatorship proceeding, the conservatee is the holder of the privilege with respect to communications with that counsel. This bill also applies a similar rule to wards whom are appointed counsel.

In support of this bill, the author states that:

When there is a legal dispute between the conservatee and conservator, such as proceedings to remove the conservator from this role, the interests of the conservatee and the conservator diverge. In those cases, designating the conservator as the holder of the privilege and giving him or her authority to waive the privilege and force disclosure of confidential lawyer/client information is antithetical to the spirit and intent of the statute, and against the best interests of the client. Additionally, the attorney’s duties should not be subject to the potential conflict present when the conservator, as the “holder of the privilege,” waives the attorney-client privilege to gain a procedural and substantive advantage in a proceeding brought by the conservatee against the conservator. This bill protects against that.

This bill does not affect the privilege that a conservator holds when the conservator is being advised in his or her personal capacity. An issue was raised about whether this bill would impact privileged communications between a conservator and his or her own personal attorney. In most instances, a conservator will seek counsel to advise the conservator about his or her own fiduciary duties. Since the conservator is acting as the client in these attorney-client relationships, it does not appear that existing law (nor this bill, as proposed to be amended) would affect those communications. Presumably, a conservator would hire independent counsel to consult on personal matters, rather than using the conservatee’s attorney. However, even if this were to occur (notwithstanding potential conflicts of interest), the conservatee’s attorney would be advising the conservator as a separate client so there would be an independent attorney-client privilege.

Proposed amendments. As reflected in this analysis, the author proposes to adopt the following amendment in Committee:

On page 2, strike lines 12 through 16, inclusive, and insert:

(e) If the conservatee or ward has counsel appointed for him or her, or the conservatee has retained counsel to represent the conservatee in the conservatorship proceeding, the conservatee or ward is the holder of the privilege with respect to communications with that counsel.

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations

Opposition

None on file

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334