Can an Estate Trustee waive privilege?

August 20, 2013 Hull & Hull LLP Executors and Trustees Tags: 0 Comments

In the course of estate litigation, the notes of the drafting lawyer can often be a crucial piece of evidence. As a result, when estate litigation is contemplated, one of the first requests that is often made is for the drafting lawyer to release their file materials.

When a drafting lawyer is faced with such a request, they are often faced with an ethical dilemma.  As the deceased individual was the lawyer’s client, and the deceased’s individual is no longer around to waive privilege, can the drafting lawyer release their file materials to the requesting party without breaching the duty of confidentiality that is owed between the drafting lawyer and the deceased?

Rule 2.03(1) of the Rules of Professional Conduct for the Law Society of Upper Canada provides:

“A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.”

A strict reading of rule 2.03(1) provides that unless authorized to do so by the deceased individual, or required to do so by law, the drafting lawyer may not release any confidential information to any individual. As can be imagined, this could potentially pose some problems to those requesting the drafting lawyer’s file materials.

In Hicks Estate v. Hicks, (1987) 25 E.T.R. 271, the court was faced with the question of whether an Estate Trustee could step into the shoes of the deceased individual and waive privilege in the same fashion as the deceased. In Hicks Estate, the drafting lawyers refused to release their file materials, citing solicitor/client privilege. In reviewing the jurisprudence on point, the court clarifies that solicitor/client privilege exists for the benefit of the client, not the solicitor. As a result, the Estate Trustee was regarded as having the ability to waive confidentiality in the same fashion as the deceased. In coming to such a conclusion, the court states:

“It is clear, therefore, that privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, the administrator of the estate of Mildred Hicks. The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, would have been entitled to from the two solicitors. The Rules of Practice enable the plaintiff to obtain disclosure of any other relevant material in the possession of the former solicitors of Mildred Hicks and to examine them prior to or at trial.”

As Hicks Estate makes clear, after death the Estate Trustee may step into the shoes of the deceased individual and waive any duty of confidentiality as if they were the deceased themselves.

Generally speaking, as the authority of an Estate Trustee can be challenged, we recommend that a drafting lawyer request a court order authorizing their release of any confidential information prior to releasing such information. Under certain circumstances however, when it appears clear that the authority of the Estate Trustee is not being challenged, under the authority of cases such as Hicks Estate, the drafting lawyer may treat a request for information from the Estate Trustee as if it was a request from the deceased themselves.

Thank you for reading.

Stuart Clark

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