Attorney-Client Privilege Runs to POA's Holder, Not Its Grantor

A Massachusetts probate court rules that in an estate's challenge to inter vivos transfers made by the holder of a power of attorney, the attorney-client privilege exists between the law firm that assisted with the transfers and the holder, not between the firm and the power of attorney's grantor. Kokoros v. Kokoros, et al. (Middlesex (Mass.) Probate & Family Court, No. 04E0103GC, Feb. 8, 2005).

In 1997, Nicholas Kokoros executed a durable power of attorney appointing his sister, Alexandra Lappas, as his attorney-in-fact. After Mr. Kokoros became ill in early 2004, Mrs. Lappas transferred property and stock to herself and her siblings, retaining the firm of Cushing & Dolan to effectuate the transfers. Mr. Kokoros died in April 2004 and his son, George Kokoros, was appointed administrator of the estate. George sought to have the transfers set aside, contending that they were fraudulent and a breach of fiduciary duty. George then waived the attorney-client privilege between Mr. Kokoros and Cushing & Dolan, allowing the firm to provide all documents regarding Mr. Kokoros that the administrator requested. Cushing & Dolan moved to quash the resulting deposition subpoenas, asserting that the attorney-client privilege was not between the firm and Mr. Kokoros (the power of attorney's grantor) but between the firm and Mrs. Lappas (the power of attorney's holder).

The probate court agrees with Cushing & Dolan that the attorney-client privilege is between the law firm and the holder of the power of attorney. Noting that there was no arrangement or even communication in 2004 between the law firm and the grantor, the court rules that "[t]he privilege runs to the individual seeking legal advice or assistance, regardless of the capacity he or she may be acting under and, therefore, any communications between the holder and the law firm are privileged." The court comments, however, that Mrs. Lappas's successful assertion of the privilege may be a pyrrhic victory because "the Court may draw an inference that the holder was acting in furtherance of her interests and not the grantor's interests."