To withhold attorney-client communications from a successor trustee, a predecessor trustee must take affirmative steps, at the time of seeking the attorney advice, to show the consultation was made in the trustee’s personal, not fiduciary, capacity. Following Moeller v. Superior Court (1997) 16 Cal.4th 1124, this decision holds that a predecessor trustee may be able to withhold from a successor trustee some attorney-client communications it received if it shows that those communications were made or obtained for guidance in the trustee’s personal capacity out of a genuine concern for possible future claims of breach of fiduciary duty. But to claim a privilege in those communications, the predecessor trustee must have taken affirmative steps at the time the advice was received to distinguish the advice received in a personal capacity from that received in a fiduciary capacity and on the trust’s behalf. The predecessor trustee cannot shield attorney communications from disclosure to the successor trustee by simply labeling them as “defensive” after the fact.
California Court of Appeal, First District, Division 3 (Jenkins, J.); March 21, 2017; 2017 WL 1056114