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246 Cal.App.4th 653 (2016)
Who will protect a testator’s interest if he or she dies during litigation?

A Special Trust Administrator attorney is a temporary fiduciary appointed by the probate court to marshal and preserve the assets of a trust. This may happen in the case of a contested will or problems serving notice on interested parties, among others. A Special Trust Administrator attorney is particularly useful if you are seeking to preserve the decedent's assets before a permanent administrator can be appointed or you are asking for a particular power (i.e. to represent the estate in civil litigation, to collect certain assets or manage a particular part of the decedent's estate).

Tucker Cheadle is a trust administrator attorney that has made new law in California regarding attorney-client privilege while serving as a special administrator for an estate.

He is an attorney, licensed trustee, tax expert, and expert witness in trust and estate cases nationwide. As a professional trustee, he has acted as a fiduciary, trustee, executor, and administrator on more than 100 trusts and wills. In a particular case filed in Orange County Superior Court, Tucker Cheadle, as a special administrator for an estate, made new law in California after being appointed as a special administrator for the estate of Robert Obarr.

Robert Obarr died during pending litigation; thus, Tucker Cheadle replaced him as a party to the litigation initiated by DP Pham, LLC. DP Pham, LLC made loans to Robert Obarr totaling almost $3 million, secured by a lien on Obarr’s mobile home park in Westminster, CA (“Property”). After promises to both a second buyer and DP Pham to sell the Property to each, the second buyer sued Obarr and his personal assistant/bookkeeper, Christi Torres Galla. Pham answered and cross-complained. Obarr unexpectedly died thereafter.

The second buyer filed a motion for summary adjudication of its specific performance claim. Pham’s opposition included a declaration from Galla attaching an email to Obarr from his business attorney, Shapleigh Kimes, and a letter to Obarr from Kimes. Galla had been copied on each communication, per Obarr’s standing instruction, and each identified Kimes as an attorney. Cheadle then objected to the admission of Kimes’s email and letter on the basis that they were privileged communications under the attorney-client privilege.

Although the trial court sustained Cheadle’s objections to the evidence, it denied a subsequent motion to disqualify Pham’s counsel. The court found that although Cheadle met his burden in establishing that the communications were between an attorney and client, based on its “in camera review of the communications,” the “privilege did not apply because Kimes's statements in the communications suggested he was not representing Obarr concerning the potential sale of the Property, and therefore, as to the Property no attorney-client relationship existed.” (Id. at p. 662.)

The trial court also found waiver on an Evidence Code section 957, 960 and 961 pertaining to communications
  1. “between parties all of whom claim through a deceased client” (§ 957)
  2. “concerning the intention of a client, now deceased, with respect to a deed of conveyance, will or other writing, executed by the client, purporting to affect an interest in property” (§ 960)
  3. “concerning the validity of a deed of conveyance, will, or other writing, executed by a client, now deceased, purporting to affect an interest in property” (§ 961) (Id. at p. 944.)
In DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653, the appellate court confirmed that Evidence Code “section 915 prohibits a court from reviewing an allegedly privileged attorney-client communication to determine whether it is privileged because the nature of the attorney-client privilege requires absolute protection for all confidential communications between an attorney and a client regardless of their content.” Additionally, despite Galla’s disclosure to Pham, the “privilege is not waived when the client's agent discloses a privileged communication without the client's authorization.” (Id. at pp. 667-668.)

In finding Evidence Code section 957 inapplicable, the “Legislature's based this exception on the reasonable assumption the deceased client would want privileged communications disclosed to ensure the distribution of the client's estate was consistent with the client's wishes” as opposed to a party seeking affirmative relief against the decedent’s estate. (Id. at p. 971.) Further, as “with section 957's exception, there is no case law construing the language” of section 960 and 961, but based on the Law Revision Commission Comments, the trial court found the sections did not apply because at “most, the email and letter therefore would reflect general information about Obarr's intent concerning the Property's sale months before he executed either purchase agreement, rather than the sort of information an attesting witness would have about the purchase agreements and their execution.” (Id. at p. 673.)

The appellate court remanded the question of whether disqualification was proper, instructing that “the court should limit itself to nonprivileged information it received from the parties about the communications and their impact on the action. Nothing about the attorney-client privilege, however, prevents the court from considering, or requiring disclosure of, any information not derived from an examination of the privileged communications, such as facts relating to who holds the privilege, whether an attorney-client relationship existed at the time of the communications, and whether the client intended the communication to be confidential.” (Id. at p. 677.)

This decision, led by Tucker Cheadle’s argument, provides the first case law interpretation of waivers where the original holder of the privilege is deceased. In addition, the remand instruction should guide practitioners as to the parameters of information trial courts may consider in determining whether the privilege has been waived. This appellate decision greatly limited the discovery of evidence in the Pham case, the resolution of the case, and the expeditious administration of the estate.

Tucker Cheadle’s qualifications as a Trust Administrator speak for themselves:
Tucker Cheadle has been qualified to testify as an expert witness in the areas of income taxes for estates, trusts and beneficiaries, trust accountings, standard of care for drafting trust and estate documents, standard of care for administration of trusts and estates, and reasonableness of attorney’s fees and trustee’s fees, among others. He has served as an expert witness in cases filed in Los Angeles County, Orange County, the surrounding counties of Riverside, San Bernardino, San Diego, and Reno and Cleveland.

Call Tucker Cheadle at 949-553-1066 to discuss your trust administrator and/or trust and estate planning expert witness needs.

A review of any materials on this web page, any preliminary comments or an introductory meeting does not constitute legal, income tax or accounting advice upon which reliance can be placed. The attorney client relationship can only be created by a written retainer agreement following a check of potential and actual conflicts of interest with other clients.
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