In re Stompor

82 A.3d 1278, 165 N.H. 735
CourtSupreme Court of New Hampshire
DecidedDecember 6, 2013
DocketNo. 2012-555
StatusPublished
Cited by7 cases

This text of 82 A.3d 1278 (In re Stompor) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Stompor, 82 A.3d 1278, 165 N.H. 735 (N.H. 2013).

Opinion

Conboy, J.

The petitioner, Stephen Stompor, seeks a writ of certiorari, see SUP. Ct. R. 11, challenging an order of the 6th Circuit Court — Concord Probate Division (Hampe, J.) granting the petitioner and his brother, the respondent, Stan Stompor, access to the file of an attorney who drafted estate plan documents for their parents, Broneslaw and Amelia Stompor (the parents). We affirm.

[737]*737The following facts are drawn from the record. In 2001 and 2002, the parents met with an attorney (the Attorney) regarding their estate plans. The Attorney drafted estate plan documents for them; however, due to a conflict, the Attorney subsequently withdrew from representing them, and the estate plan documents were not executed.

In 2004, the petitioner wrote to the Attorney to inquire whether the Attorney would again represent the parents with regard to their estate plans. The Attorney declined to do so. The petitioner then helped the parents prepare certain estate plan documents, and the parents executed those documents in October 2004. Although these estate plan documents are not included in the record on appeal, the petitioner represents, and the respondent does not dispute, that they include wills that bequeath the parents’ assets to the petitioner and his family to the exclusion of the parents’ other children. The documents include the Broneslaw J. Stompor Living Trust, of which the petitioner is a co-trustee. That same year, the parents also gave the petitioner powers of attorney to act as their agent.

In October 2007, the respondent filed a petition in the probate division, on the parents’ behalf, pursuant to RSA 506:7 (2010), seeking to determine the legality of certain acts of the petitioner and requesting, among other things, an accounting of the petitioner’s handling of all of the parents’ funds either personally or as a trustee of his father’s living trust. In June 2009, the respondent successfully moved to amend his petition to allege that, in 2004, the petitioner, as the parents’ fiduciary, exercised undue influence over the parents when they lacked the capacity to understand the estate plan documents that gave the petitioner and his family exclusive inheritance rights to the parents’ assets to the exclusion of the parents’ other children. The respondent sought to have the petitioner removed as the parents’ fiduciary and to void all actions taken in his fiduciary capacity. The parents passed away during the late summer of 2009.

In February 2010, while his petition was still pending, the respondent sought disclosure from the Attorney of any information he had regarding his contact with the parents in connection with the challenged 2004 estate plan. The petitioner objected, arguing that the attorney-client privilege prohibits disclosure of any documents the Attorney has relating to his consultations with the parents. Thereafter, the court granted the parties’ assented-to discovery motion allowing the Attorney to submit, for in camera review, any files he had “concerning [the parents’] estate plan[] documents signed in 2004.” The court reviewed the file and held a hearing. At the December 1, 2011 hearing, the Attorney appeared and objected to disclosure of his file on the ground that, with the possible exception of the 2004 letter from the petitioner, its contents are subject to the attorney-client privilege.

[738]*738Subsequently, the court issued an order allowing disclosure of the Attorney’s file to the parties. The court ruled that, pursuant to Stevens v. Thurston, 112 N.H. 118 (1972), the Attorney’s entire file was discoverable because it was relevant to a dispute among the decedents’ children and to whether the petitioner unduly influenced the parents’ decisions regarding their estate plan. After being denied an interlocutory appeal, the petitioner filed this petition for writ of certiorari challenging the trial court’s ruling. We accepted the petition and stayed the court’s disclosure order pending resolution of this proceeding.

The petitioner argues that the attorney-client evidentiary privilege prohibits disclosure of the Attorney’s file and that no exceptions to the privilege apply. He further contends that this case does not involve an at-issue waiver or a compelling need that would allow for disclosure of the Attorney’s file. The petitioner also argues that his 2004 correspondence with the Attorney is protected by the attorney-client privilege because he wrote to the Attorney on the parents’ behalf. Finally, the petitioner maintains that the trial court erred because the Attorney’s file is not responsive to the discovery order.

We review a trial court’s decisions on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard. Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 610 (2006). We will not disturb the trial court’s order absent an unsustainable exercise of discretion. Id. To meet this standard, the petitioner must demonstrate that the trial court’s ruling was clearly untenable or unreasonable to the prejudice of his case. See id.

“The common law rule that confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction.” Hampton Police Assoc. v. Town of Hampton, 162 N.H. 7, 15 (2011) (quotation omitted). New Hampshire Rule of Evidence 502 essentially codifies the common law attorney-client privilege. Id. Under Rule 502(b), “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client,” including communications between the client and his lawyer. This privilege continues after the death of the client, see Stevens, 112 N.H. at 119, and may be claimed by the personal representative of a deceased client as well as the person who was the lawyer or the lawyer’s representative at the time of the communication, “but only on behalf of the client,” N.H. R. Ev. 502(c).

Rule 502(d), however, sets forth five categories of communications that are not privileged. Applicable here is Rule 502(d)(2), which excepts [739]*739from the privilege “a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.” Although the purpose of the attorney-client privilege is to encourage full disclosure of information between an attorney and his client by guaranteeing the inviolability of their confidential communications, Riddle Spring Realty Co. v. State, 107 N.H. 271, 274 (1966), the basis for the exception in Rule 502(d)(2) is that “all reason for assertion of the privilege disappears” when the privilege is being asserted not for the protection of the testator or his estate but for the protection of a claimant to his estate, Stevens, 112 N.H. at 119. This is so because the best way to protect the client’s intent lies in the admission of all relevant evidence that will aid in the determination of his true will. Id. As the United States Supreme Court has noted, “[t]he general rule with respect to confidential communications is that such communications are privileged during the testator’s lifetime and, also, after the testator’s death unless sought to be disclosed in litigation between the testator’s heirs”; “[t]he rationale for such disclosure is that it furthers the client’s intent.”

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Cite This Page — Counsel Stack

Bluebook (online)
82 A.3d 1278, 165 N.H. 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-stompor-nh-2013.