Moeller v. Superior Court

CHIN, J.

I respectfully dissent.

The majority opinion departs from this court’s consistent deference to the Legislature’s prerogative in defining and controlling evidentiary privileges. The Evidence Code specifically states that “[t]he provisions of Division 8 (commencing with Section 900) relating to privileges shall govern any claim of privilege . . . .” (Evid. Code, § 12, subd. (c).) “Thus, the Legislature has codified, revised, or supplanted any privileges previously available at common law: the courts are no longer free to modify existing privileges or to create new privileges. [Citation.]” (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ].) As Justice Mosk stated for a unanimous court: “Our deference to the Legislature is particularly necessary when we are called upon to interpret the attorney-client privilege, because the Legislature has determined that evidentiary privileges shall be available only as defined by statute. (Evid. Code, § 911.)” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373 [ 20 Cal.Rptr.2d 330 , 853 P.2d 496 ].) Except as required by constitutional law, the courts may neither add to the statutory privileges nor imply unwritten exceptions to them. (Ibid.)

*1140 The majority frames the question in this case as whether the attorney-client privilege enables a predecessor trustee to withhold from a successor trustee documents related to trust administration. (Maj. opn., ante, at p. 1129.) A trustee, whether a natural or juridical person, who consults a lawyer to secure legal service or advice in the lawyer’s professional capacity is a “client.” (Evid. Code, § 951.) The Legislature has given the client “a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” (Evid. Code, § 954.) With exceptions that are not relevant here (Evid. Code, § 953, subds. (b), (c), (d)), the person who controls the privilege is the client who confidentially communicated with the lawyer. Therefore, when a trustee consults a lawyer for legal advice, that person, not a successor trustee, controls disclosure of communications with the lawyer.

Nothing in these statutes suggests a trustee’s privilege to withhold confidential attorney-client communications is an appendage of legal title to trust assets, an accessory to be stripped from the client who consulted the lawyer and passed along to the next person on the job. Instead, the plain import of the Legislature’s conception is that the privilege is personal and remains with the person who consulted the attorney. The only circumstances the Evidence Code recognizes for transfer of the privilege are dealt with in the definition of “holder of the privilege” in Evidence Code section 953. Those circumstances are: (1) when the client legally cannot assert the privilege because a guardian or conservator has been appointed; (2) when the client is dead; and (3) in the case of certain juridical persons, when the client “is no longer in existence.” (Evid. Code, § 953.) None of those circumstances applies to transfers of title to trust property to successor trustees. The Evidence Code has no provision that displaces the privilege, or designates another as its holder, simply because a new person took over the client’s fiduciary duties.

The majority mistakes the matter as one that can be resolved by resort to the Probate Code and the trust instrument. The legislative design forecloses that approach, however, because the Evidence Code provisions “relating to privileges shall govern any claim of privilege . . . .” (Evid. Code, § 12, subd. (c).) Although a successor trustee may assume its predecessor’s powers and duties with respect to the trust estate, that does not mean the successor also acquires the privilege the Evidence Code conferred on its predecessor. The predecessor holds the privilege because it was a person who sought legal advice or services from an attorney, not because it was a trustee with a question about trust administration.

The majority’s view gains no validity by its reliance on the practical benefits that a successor trustee may obtain by invading its predecessor’s *1141 privileged communications. Necessity and desirability afford no basis for judicial revision of legislative dictates on who possesses the privilege. The Legislature already determined that the benefits of the privilege it codified outweigh the risk of unjust results. (People v. Gionis (1995) 9 Cal.4th 1196, 1207 [ 40 Cal.Rptr.2d 456 , 892 P.2d 1199 ].) In this regard, we have described the attorney-client privilege as “essential to our system of justice,” even though we recognized it can and does result in suppression of relevant information. (Id. at p. 1208.) Allowing necessity to be the basis for compromising privileged communications would be a step towards the privilege’s ultimate abolition. (Shannon v. Superior Court (1990) 217 Cal.App.3d 986, 997-998 [ 266 Cal.Rptr. 242 ].)

Any reliance on necessity and desirability as a justification for this new rule may well be shortsighted. We do not know whether successor trustees, before now, had any difficulty in functioning adequately without commandeering their predecessors’ privileged communications. We similarly do not know whether predecessor trustees, by asserting the attorney-client privilege, have evaded full accountability for mismanagement or breaches of trust. Whether such problems actually exist and, if they do, the appropriate solutions, are the types of questions best dealt with through the legislative process. In any event, the Legislature controls these matters. The code it enacted does not allow a successor trustee to usurp the attorney-client privilege granted to a predecessor trustee who sought legal counsel. If this is a gap in the law of privilege, it is not one that we are free to fill. Any change must come from the Legislature.

The majority too easily discounts the problems its rule will create for trustees. A privilege to withhold confidential communications has little utility when the parties to a communication cannot reliably anticipate whether it will in fact be privileged. The majority posits a distinction between those communications in which a trustee, “in its fiduciary capacity, sought the attorney’s advice for guidance in administering the trust” and those in which a trustee “seeks legal advice in its personal capacity out of a genuine concern for possible future charges of breach of fiduciary duty . . . .” (Maj. opn., ante, at p. 1134, original italics.) The majority makes the former available to successor trustees, while the latter would still have some chance of remaining confidential.

That distinction is illusory and will not allow predictable implementation as a practical matter. It is the trustee’s fiduciary capacity that imposes on the trustee potential personal liability for any breach of trust. Aside from the context of this case, where counsel conducted litigation on behalf of the trustee, one obvious reason for a trustee to consult counsel on trust administration is to avoid breaches of trust and the concomitant personal liability. *1142 How are trustees and counsel to know when they have crossed the line and exposed their confidential communications to potentially hostile successors? Trial courts too will have little guidance in ruling on these privilege claims. However, notwithstanding Evidence Code section 915’s prohibition, the majority apparently will allow trial courts to require disclosure in camera of as much information as deemed necessary to permit a decision. (Maj. opn., ante, at p. 1135.) This latitude will not reassure trustees who need to discuss difficult trust problems candidly and in confidence with counsel.

The majority offers only one clear basis for discerning truly privileged communications from those only conditionally privileged: Who paid the attorney’s bill, the trust or the trustee? As a result, professional trustees can be expected to employ “shadow counsel” for consultation on any trust matters with potentially sensitive implications. In the majority’s terms, this too will be “merely one of the burdens professional trustees take on—for, presumably, an appropriate fee.” (Maj. opn., ante, at p. 1134.) Unfortunately, increased trustee fees are the most likely consequence of the majority’s innovations in the Legislature’s domain.

Baxter, J., and Brown, J., concurred.