NY State Senate Bill 2019-S6409

Senate Bill S6409

Signed By Governor

2019-2020 Legislative Session

Relates to the privilege between a personal representative and the attorney to lifetime trustees

download bill text pdf

Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Nov 20, 2019	signed chap.529
Nov 08, 2019	delivered to governor
Jun 19, 2019	returned to senate passed assembly ordered to third reading rules cal.510 substituted for a7601 referred to judiciary delivered to assembly passed senate ordered to third reading cal.1715
Jun 07, 2019	referred to rules

Votes

- Jun 19, 2019 - Floor Vote
  S6409
  
  62
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 19, 2019
      
      aye (62)
      
      Addabbo Jr.
      
      Akshar
      
      Amedore
      
      Antonacci
      
      Bailey
      
      Benjamin
      
      Biaggi
      
      Boyle
      
      Breslin
      
      Brooks
      
      Carlucci
      
      Comrie
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hoylman-Sigal
      
      Jackson
      
      Jacobs
      
      Jordan
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      LaValle
      
      Lanza
      
      Little
      
      Liu
      
      Martinez
      
      May
      
      Mayer
      
      Metzger
      
      Montgomery
      
      Myrie
      
      O'Mara
      
      Ortt
      
      Parker
      
      Persaud
      
      Ramos
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Seward
      
      Skoufis
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
  Jun 19, 2019 - Rules Committee Vote
  S6409
  
  18
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 19, 2019
      
      aye (18)
      
      Benjamin
      
      Breslin
      
      Comrie
      
      Flanagan
      
      Gianaris
      
      Griffo
      
      Hoylman-Sigal
      
      Kennedy
      
      Krueger
      
      LaValle
      
      Lanza
      
      Little
      
      Liu
      
      Martinez
      
      Parker
      
      Savino
      
      Seward
      
      Stewart-Cousins
      
      aye wr (1)
      
      Robach

2019-S6409 (ACTIVE) - Details

See Assembly Version of this Bill:: A7601
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §4503, CPLR

2019-S6409 (ACTIVE) - Summary

Relates to the privilege between a personal representative and the attorney to lifetime trustees.

2019-S6409 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6409

SPONSOR: GAUGHRAN
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the privilege between a personal representative and the
attorney to lifetime trustees

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Surro-
gate's Court Advisory Committee.

This measure would amend CPLR 4503(a) to extend the attorney-client
privilege to lifetime trustees. The current statute's failure to do this
is an oversight.

In August 2002, CPLR 4503(a) was amended to protect from disclosure
confidential communications between a fiduciary and his or her attorney.
The purpose of the amendment was to overturn a line of cases that had
carved out a "fiduciary" exception to the attorney-client privilege. The
amendment codified three changes to the attorney-client privilege: (1)
that confidential communications between a fiduciary and his or her
attorney are protected; (2) that no waiver may be found by virtue of the
relationship between the fiduciary and beneficiary or beneficiaries; and

(3) that absent a retainer, a beneficiary shall not be treated as the
client of the fiduciary's attorney. The amendment references personal
representatives as the persons protected, even where preliminary or
temporary letters issue, and extends to a guardian appointed for an
incapacitated person under Article 81 of the Mental Hygiene Law where
the appointing judge has so provided.

Due to an omission, lifetime trustees were not included within the defi-
nition of "personal representative." There was and is no reason to
exclude a lifetime trustee from the protection of the attorney-client
privilege. Given the increasing use of lifetime trusts by New Yorkers,
the need to amend the statute is compelling.  Accordingly, this measure
simply includes "lifetime trustees" in the definition of fiduciaries to
whom the privilege applies.

Additionally, the measure makes clear that a fiduciary does not waive
the privilege by merely asserting he or she relied upon the advice of
counsel when acting in such capacity. The effect of asserting the privi-
lege is best left to a court's determination in light of the facts and
circumstances before it.

 
2017-18 LEGISLATIVE HISTORY:

OCA 2017-58
A7088 (Weinstein) (2017-PASSED)
A9000 (Dinowitz) (2018-PASSED)

 
2015-16 LEGISLATIVE HISTORY:

OCA 2015-18R

A7868 (WEINSTEIN) (PASSED)

2019-S6409 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6409
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               June 7, 2019
                                ___________
 
 Introduced by Sen. GAUGHRAN -- (at request of the Office of Court Admin-
   istration)  --  read twice and ordered printed, and when printed to be
   committed to the Committee on Rules
 
 AN ACT to amend the civil practice law and rules,  in  relation  to  the
   privilege  between a personal representative and the attorney to life-
   time trustees

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph 2 of subdivision (a) of section 4503 of the civil
 practice  law and rules, as added by chapter 430 of the laws of 2002, is
 amended to read as follows:
   2. Personal representatives. (A) For purposes of  the  attorney-client
 privilege,  if  the client is a personal representative and the attorney
 represents the personal representative in that capacity, in the  absence
 of  an agreement between the attorney and the personal representative to
 the contrary:
   (i) No beneficiary of the estate is,  or  shall  be  treated  as,  the
 client  of the attorney solely by reason of his or her status as benefi-
 ciary; [and]
   (ii) The existence of a fiduciary relationship  between  the  personal
 representative  and  a  beneficiary  of  the  estate  does not by itself
 constitute or give rise to any waiver of the privilege for  confidential
 communications made in the course of professional employment between the
 attorney  or  his or her employee and the personal representative who is
 the client; AND
   (III) THE FIDUCIARY'S TESTIMONY THAT HE  OR  SHE  HAS  RELIED  ON  THE
 ATTORNEY'S ADVICE SHALL NOT BY ITSELF CONSTITUTE SUCH A WAIVER.
   (B)  For  purposes  of this paragraph, "personal representative" shall
 mean (i) the administrator, administrator c.t.a., ancillary  administra-
 tor,  executor,  preliminary executor, temporary administrator, LIFETIME
 TRUSTEE or trustee to whom letters have been issued within  the  meaning
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11643-01-9

 S. 6409                             2
 
 of  subdivision  thirty-four  of section one hundred three of the surro-
 gate's court procedure act, and (ii) the guardian  of  an  incapacitated
 communicant if and to the extent that the order appointing such guardian
 under  subdivision (c) of section 81.16 of the mental hygiene law or any
 subsequent order of any court expressly provides that the guardian is to
 be the personal representative  of  the  incapacitated  communicant  for
 purposes of this section; "beneficiary" shall have the meaning set forth
 in  subdivision  eight  of  section one hundred three of the surrogate's
 court procedure act and "estate" shall have the  meaning  set  forth  in
 subdivision  nineteen  of  section  one hundred three of the surrogate's
 court procedure act.
   § 2. This act shall take effect immediately.

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