Who Owns the Privilege When a Spouse Dies?

June 23, 2004

The attorney-client privilege provides such a strong protection that it outlives the client. However, who decides whether to waive the privilege after the client dies – the lawyer who represented the client at the time, or the client’s executor?

In State v. Doe, 803 N.E.2d 777, 780 (Ohio 2004), the Ohio Supreme Court held that an Ohio law (typical of other states’ laws) “entitled the surviving spouse of that client to waive the privilege on behalf of the deceased client.” The Ohio Supreme Court rejected the decedent’s lawyer’s argument that “she knows better” than the surviving spouse whether the decedent would have wanted the communication revealed. Id.

Determining who “controls” the privilege can also arise in the corporate setting – as when a company sells one of its subsidiaries to another company (which normally then controls the privilege).