Robert Brand wandered into an estate lawyer’s office in 2013 looking to formulate a plan. His attorney, Barton Cowan, was named as his financial power of attorney with two of Brand’s children, David and Laura designated as back ups.
Robert Brand was also trustee of a 2003 trust which held title to the family vacation home in Sun Valley, Idaho. In 2018 Robert granted his son, David, a right to acquire the Sun Valley residence (an option) upon Robert’s death. A month later Robert inked the Robert Brand Revocable Trust. It provided for some equal cash distributions of his assets at death with the remainder divided equally between David Brand and Laura Brand. Our estate planning dad was then estranged from another child, Leigh.
So, the plan is made. Then Cupid intervened. In October 2020 Robert Brand married Sandra. About a year after that event Robert began to suffer a series of strokes which required some rehab stays. In December 2021, Robert issued letters to son David (the option holder on Sun Valley) advising him to stay away from Robert’s home and the place in Sun Valley. This produced discussions by which Dad and new step-mom consented to have David visit Robert at the rehab. Meanwhile Robert is sent to a new rehab outside Chicago and a new power of attorney is executed. Mr. Cowan (the 2018 estate lawyer) is now “out.”
In February 2022 son David gets a letter from an attorney in Idaho informing him that because he had not paid for the option to acquire Sun Valley, the option was revoked. This begot a chain of emails between David and the Sun Valley attorney. Embedded in those emails were communications between the Sun Valley attorney and Robert’s estranged child, Leigh.
Fast forward a year to February 2023. Son David has decided that Robert’s new wife and estranged child (Leigh) have conspired against him, defamed him and invaded his privacy. A complaint is filed alleging such conduct. In this litigation it is revealed that Robert was communicating about changing his estate documents (the financial power of attorney in particular) as early as November 2021. He does so in email communications with yet another attorney (not Bart Cowan or the lawyer in Sun Valley) where he forwarded his estate planning communications with Cowan and the new estate lawyer to sons David and Leigh (the estranged one).
Yes, it’s confusing. But, there is some important law trapped in all the confusion. Robert Brand is the client of Attorney Cowan with whom he forms estate plans. He later switches to a new lawyer and starts communicating with both Cowan and new lawyer about revisions to the 2018 plan. Those communications are privileged and not subject to disclosure in any litigation. 42 Pa.C.S. 5928. They were protected UNTIL Father Robert decided he would forward the communications to two of his children. In a 2-1 decision (Judge Olson dissenting and concurring), the Superior Court rules that once a client starts forwarding his attorney confidential communications to anyone other than his attorney(s), all privilege is lost and litigants have rights to all communications between client and his attorney(s). See Pa. R.C.P. 4003.1(a). Nationwide Mutual Ins. v. Fleming, 992 A.2d 665 (Pa. 2010). An inadvertent disclosure where the client notifies the recipients that he is “calling back” the mistake may yield a different result, but Robert forwarded these emails and never took any action to indicate it was a mistake. Ironically, the trial court opinion concluded that Robert fully intended to share these emails with his kids.
The practical takeaway from this is that we need to advise clients that their email habits can destroy the longstanding and venerated attorney-client privilege. Father Robert is not even a party to this case, but his email communications with his attorneys has become a lynchpin of his one son’s case against his wife and his other son. He is appealing a discovery order requiring him to disclose his electronic message with his lawyers. And he is losing because he decided to “share” his thoughts with his kids. Estate lawyers will quiver because almost every one I have encountered openly fears litigation. But, divorce lawyers need to pay attention as well because we live in an age when email and text are ubiquitous and clients do like to share what they tell us and we tell them in response. And all of us should note the procedural posture here. When an interlocutory order in a case requires disclosure of information for which attorney-client privilege has been asserted, the order is appealable. Had the privilege been upheld, it would not have been appealable.
Now for the speculative subtext. A fellow walks into the estate planner’s office and does “the plan.” He likes two of his kids; the other, not so much. But over time, he discovers a new love and re-marries. It looks like the new bride is in communication with the estranged son. And, come 2021, the estate plans cemented in 2018 begin to shift. Even the lawyer who wrote the plan is sent to the showers. It appears from this opinion that the son once favored with the option to acquire Sun Valley is not taking these changes well. And, it would not surprise this observer that David Brand believes the strokes his father suffered in 2021 may have diminished his capacity or caused him to fall under “undue influence.” My comment can be dismissed as raw speculation, but I’ve seen this movie play before under different captions. To employ a phrase used in an earlier post: perhaps between 2018 and 2021 Robert Brand “lost his marbles.” But it could also be that he found them. Robert Brand is still alive and in this case, the litigation over his estate appears to have begun well before his demise. Here’s the majority decision: J-A05024-25cdm – 106486906324303232.pdf