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. Adler v. Greenfield (Ill. Ct. App., 6th Div., No. 1-12-1066, May 24, 2013).
Frank Greenfield drafted wills and trusts for Leonard and Muriel Perry as part of their estate plans. Mr. Perry's will gave Mrs. Perry a power of appointment. 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 Illinois Court of Appeals reverses in part, holding that communication between the bank and Mr. Greenfield before Mrs. Perry died is entitled to attorney-client privilege because the bank was acting as Mrs. Perry's agent. The court also rules that Mrs. Perry's estate cannot waive the attorney-client privilege. The bank is required to submit the documents to the court for an in camera determination of whether the documents are privileged. But the court goes on to rule that communication between the bank and Mr. Greenfield after Mrs. Perry died is not protected.
For the full text of this decision, go to: https://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1121066.pdf
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