Powers v. Puka: Waiving Attorney-Client Privileges

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Link to the written Timeline Of Events in the Powers v. Puka lawsuit.

Below is a Visual Timeline Of Events.

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If I was responsible for the defending party in the Powers v. Puka case, my initial move would be to invoke attorney-client and accountant-client privileges.

When faced with the multitude of discovery questions and production requests, what other defenses might they employ?

Given their past behavior of deceit, evasion, and partial truths, I expect them to continue this approach throughout the court process.

Contrarily, my approach will be to proactively disclose as much evidence as feasible before the discovery phase even begins.

I aim to release as much information to the public as I can to reduce both time and expenses.

Ideally, they won’t have any discovery requests for me since I’ll have already made all relevant information public.

For every piece of information they try to conceal, I will strive to disclose an equivalent amount to the public.

• Luke 8:17 – “For there is nothing hidden that will not become evident, nor anything secret that will not be known and come out into the open.”

What is Privilege in evidence rules in Idaho?

In Idaho, the concept of privilege in Idaho Rules Of Evidence (I.R.E.) is designed to protect certain confidential communications from being disclosed during legal proceedings. Here are some of the privileges mentioned in the Idaho Rules of Evidence based on the search results:

1. Physician and Psychotherapist-Patient Privilege (I.R.E. 503): This rule provides for a privilege between a patient and their physician or psychotherapist. Confidential communications made for the purpose of diagnosis or treatment are protected from disclosure.
2. Attorney-Client Privilege (I.R.E. 502): This privilege protects confidential communications between a client and their attorney made for the purpose of obtaining legal advice. The rule specifies that an attorney cannot be examined about any communication made by the client without the client’s consent.
3. Marital Communications Privilege (I.R.E. 504): This privilege protects confidential communications between spouses. It is recognized to ensure that spouses can communicate openly without fear that their communications will be used against them in court.
4. Waiver of Privilege (I.R.E. 510): This rule states that a person waives their privilege if they voluntarily disclose or consent to the disclosure of any significant part of a privileged communication. However, the rule does not apply if the disclosure itself is a privileged communication.

It’s important to note that these privileges are not absolute. 

There are exceptions and specific conditions under which these privileges apply or can be waived. 

The application and scope of these privileges can vary based on specific circumstances and case law interpretations.

What exactly is the Idaho Rules Of Evidence and why is it important?

The Idaho Rules of Evidence (I.R.E.) are a set of rules that govern the introduction and use of evidence in legal proceedings in the state of Idaho. 

These rules apply to both civil and criminal cases and are designed to ensure that the evidence presented in court is relevant, reliable, and not prejudicial. 

The I.R.E. is modeled after the Federal Rules of Evidence, but with modifications to fit the specific needs and legal traditions of Idaho.

Here’s why the Idaho Rules of Evidence are important:

1. Fairness in Proceedings: The rules ensure that both parties in a legal proceeding have a fair opportunity to present their case and challenge the evidence presented by the other side.
2. Relevance and Reliability: The I.R.E. ensures that only relevant evidence, which is evidence that has any tendency to make a fact more or less probable than it would be without the evidence, is admitted. It also ensures that unreliable evidence, such as hearsay (with certain exceptions), is generally excluded.
3. Protecting Sensitive Information: Certain rules within the I.R.E. protect privileged communications, like those between an attorney and client or between spouses, from being disclosed in court.
4. Consistency: By having a standardized set of rules, attorneys, judges, and litigants know what to expect in court, leading to more consistent and predictable outcomes.
5. Efficiency: By excluding irrelevant or redundant evidence, the rules help streamline court proceedings, making them more efficient.
6. Protecting Rights: The rules ensure that evidence obtained in violation of a person’s constitutional rights, such as evidence obtained during an unlawful search, is not used against them in court.

In essence, the Idaho Rules of Evidence play a crucial role in ensuring that trials and other legal proceedings in Idaho are conducted fairly, efficiently, and in a manner that respects the rights of all parties involved. 

They provide a framework for determining what information can be considered by a judge or jury in reaching a decision and help maintain the integrity of the judicial process.

What exactly does attorney client privilege protect?

Attorney-client privilege is a fundamental legal principle that protects confidential communications between a client and their attorney.

Its primary purpose is to ensure that clients can seek legal advice with full candor, without fearing that their communications will be disclosed to others, especially adversaries in legal proceedings. 

Here’s what the attorney-client privilege specifically protects:

1. Confidential Communications: The privilege applies to communications that are intended to be confidential. This means that if a client speaks to their attorney in a public place where others can overhear, the privilege might not apply.
2. Between Attorney and Client: The privilege protects communications between the client and their attorney. This includes both in-house counsel and outside counsel. It doesn’t generally extend to communications with others, even if they are involved in the matter, unless they are agents of the attorney and the communication is for the purpose of facilitating legal advice.
3. Made for the Purpose of Seeking, Obtaining, or Providing Legal Advice: The privilege doesn’t cover every communication between a client and their attorney. It specifically protects communications made for the purpose of seeking, obtaining, or providing legal advice. This means that if an attorney is acting in some other capacity (e.g., as a business advisor or friend), the communications might not be privileged.
4. Not Waived: The privilege can be waived by the client. If the client shares the privileged communication with a third party or fails to take steps to maintain its confidentiality, the privilege may be lost.
5. Exceptions: There are exceptions to the attorney-client privilege. For instance, the privilege doesn’t apply when the client seeks the attorney’s advice to engage in or cover up a crime or fraud. There’s also the “common interest” or “joint defense” exception, where privileged communications can be shared with third parties who have a common legal interest without waiving the privilege.
6. Duration: The privilege continues indefinitely, even after the attorney-client relationship has ended or the client has passed away.
7. Who Holds the Privilege: The client, not the attorney, holds the privilege. This means that only the client can waive it. An attorney, however, has a duty to assert the privilege on behalf of the client unless instructed otherwise.
8. Work Product Doctrine: While closely related, the attorney-client privilege is distinct from the work product doctrine. The latter protects materials prepared by an attorney in anticipation of litigation from discovery by opposing counsel. Some communications might be protected by both the attorney-client privilege and the work product doctrine.

Does attorney client privilege protect the client from disclosing illegal or criminal behavior?

The attorney-client privilege does not protect communications made for the purpose of furthering a crime or fraud. 

This is known as the “crime-fraud exception” to the attorney-client privilege in I.R.E. 502(d)(1).

While the attorney-client privilege in Idaho protects confidential communications between a client and their attorney, it does not protect communications made with the intent of committing or furthering illegal or criminal behavior.

Is it true that if the act of disclosing information is itself protected by another privilege, then the original privilege is not considered waived, as mentioned in the exception in I.R.E. 510?

Idaho Rules of Evidence Rule 510. Waiver of Privilege by Voluntary Disclosure.

A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. “This rule does not apply if the disclosure is itself a privileged communication.”

The statement “the rule does not apply if the disclosure itself is a privileged communication” refers to an exception to the general principle of waiver of privilege.

In the context of evidence rules, when a person voluntarily discloses or consents to the disclosure of a communication that is otherwise protected by a privilege (like attorney-client privilege), they typically waive that privilege for the disclosed information. 

This means that once the information is shared voluntarily, it can no longer be protected from being introduced as evidence in court based on that privilege.

However, the exception mentioned in the statement provides that if the act of disclosing the information is itself protected by another privilege, then the original privilege is not waived.

For example, let’s say a client tells their attorney something in confidence (protected by attorney-client privilege). 

Later, the client shares that same information with a therapist during a therapy session (protected by therapist-patient privilege). 

Even though the client has disclosed the information to a third party (the therapist), the original attorney-client privilege might not be considered waived because the disclosure to the therapist is itself a privileged communication.

In essence, this exception recognizes that there are situations where a person might share privileged information in another confidential setting, and it aims to ensure that the original privilege is not automatically lost in such cases.

In Idaho, can the client claim attorney-client privilege when the client discloses information to the trustee?

Based on the search results from Idaho case law, the attorney-client privilege is a foundational principle that protects confidential communications between a client and their attorney. 

The primary purpose of this privilege is to ensure that clients can freely communicate with their attorneys, seeking legal advice without the fear that their communications will later be disclosed to others.

Here are some key points from Idaho case law regarding the attorney-client privilege:

1. Confidential Communications: The privilege applies to communications that are intended to remain confidential between the client and their attorney.
2. Scope of the Privilege: 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. This includes communications between the client and their attorney, between the attorney and their representative, and between the client and a representative of the client.
3. Waiver and Exceptions: There are recognized exceptions to the attorney-client privilege, and the privilege can be waived under certain circumstances. For instance, the privilege may be considered waived when a client discloses privileged communications to a third party.

However, the specific question of whether a client can claim attorney-client privilege when the client discloses information to a trustee is not directly addressed in the provided excerpts from Idaho case law. 

Generally, if a client voluntarily discloses privileged communications to a third party, the privilege may be considered waived. 

But the specific circumstances surrounding the disclosure, the intent of the client, and the jurisdiction’s interpretation of the privilege can all play a role in determining whether the privilege has been waived.

Is the trustee considered the attorney’s representative or the client’s representative?

In the context of trusts and the roles of various parties involved, the trustee is primarily the representative of the trust itself. 

The trustee’s primary duty is to manage the trust assets and carry out the terms of the trust for the benefit of the beneficiaries. 

The trustee owes fiduciary duties to the beneficiaries, including duties of loyalty, care, and full disclosure.

However, in the context of the attorney-client relationship and privilege:

1. Attorney’s Representative: An “attorney’s representative” typically refers to someone who works on behalf of the attorney, such as a paralegal, legal assistant, or investigator. This person assists the attorney in providing legal services to the client. Communications between the client and the attorney’s representative, in the course of the representation, are generally protected by the attorney-client privilege because they are considered extensions of the attorney.
2. Client’s Representative: A “client’s representative” refers to someone who represents the client in a specific capacity, such as an agent, employee, or other representative who is authorized to act on behalf of the client. Communications between the client’s representative and the attorney, made for the purpose of obtaining legal advice, can also be protected by the attorney-client privilege.

In the context of a trust, if a trustee seeks legal advice regarding the administration of the trust, the attorney represents the trustee in the trustee’s fiduciary capacity. 

The trustee, in this scenario, is acting as the client’s representative (with “client” being the trust itself). 

Communications between the trustee and the attorney, in this capacity, would generally be protected by the attorney-client privilege.

However, it’s essential to differentiate between the trustee’s personal interests and the trustee’s fiduciary duties to the trust. 

If the trustee seeks legal advice for personal reasons unrelated to the trust’s administration, the attorney-client relationship and privilege would be based on the trustee’s personal interests.

1. Trustee’s Role and Fiduciary Capacity:
   1. A trustee is responsible for managing the assets of a trust and ensuring that the terms of the trust are carried out in the best interests of the beneficiaries. This responsibility is known as the trustee’s “fiduciary duty.”
   2. When acting in this fiduciary capacity, the trustee represents the trust itself, not their personal interests.
2. Seeking Legal Advice for the Trust:
   1. If a trustee encounters a legal issue related to the administration of the trust (e.g., how to interpret a provision of the trust, how to handle a dispute with a beneficiary, or how to manage trust assets), they might seek legal advice to ensure they are fulfilling their fiduciary duties correctly.
   2. In this scenario, the attorney is hired to advise the trustee on matters related to the trust. The “client” in this attorney-client relationship is the trust itself, represented by the trustee. The trustee acts on behalf of the trust, not in a personal capacity.
3. Attorney-Client Privilege:
   1. Communications between the trustee and the attorney, when discussing matters related to the trust, are protected by the attorney-client privilege. This means that these communications are confidential and generally cannot be disclosed to third parties without the trustee’s (acting on behalf of the trust) consent.
4. Trustee’s Personal Interests:
   1. There might be situations where the trustee has personal legal concerns that are separate from their role as a trustee. For example, if the trustee is personally sued or has a personal financial issue unrelated to the trust.
   2. If the trustee seeks legal advice for these personal matters, the attorney-client relationship is based on the trustee’s individual interests, not the interests of the trust.
5. Differentiating the Context:
   1. It’s crucial to understand the context in which the trustee is seeking legal advice. If the advice is about the trust, the trustee is acting as the trust’s representative. If the advice is about the trustee’s personal matters, the trustee is acting in a personal capacity.
   2. The nature of the attorney-client relationship and the applicability of the attorney-client privilege will depend on this context.

In essence, the trustee can wear two “hats”: one as the representative of the trust and another as an individual with personal interests. 

The context in which they seek legal advice determines which “hat” they are wearing and how the attorney-client privilege applies.

Since the client is the trust and owns the claim of privilege, in Idaho, can the attorney and/or the trustee waive attorney-client privileges since the trust can’t claim privilege itself?

Based on the provided excerpts from Idaho case law:

1. Client Holds the Privilege: The attorney-client privilege is held by the client. Specifically, Idaho Code § 9-203(2) states that “[a]n attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.” Source: “State v. Iwakiri“
2. 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 which were made … between the client or the client’s representative and the client’s lawyer or the lawyer’s representative. Source: “State v. Robins“
3. Trust as the Client: In the context of trusts, the “client” is typically the trust itself. However, the trust, being a legal entity, acts through its fiduciaries, such as the trustee.
4. Trustee’s Role: The trustee, when acting in their fiduciary capacity, represents the interests of the trust. Therefore, when a trustee seeks legal advice regarding the administration of the trust, the attorney represents the trustee in the trustee’s fiduciary capacity. In this scenario, the trustee is essentially acting as the client’s (trust’s) representative.

Given the above principles:

• The trustee, when acting in their fiduciary capacity on behalf of the trust, may have the authority to waive the attorney-client privilege concerning communications related to the trust’s administration. This is because the trustee is acting as the representative of the trust, which is the actual holder of the privilege.
• The attorney, on the other hand, cannot unilaterally waive the privilege without the consent of the client (in this case, the trust as represented by its fiduciaries).

However, it’s essential to note that the specific circumstances surrounding the communication, the terms of the trust agreement, and the actions or inactions of the trustee can all influence whether the privilege can be waived. 

The specific rules and case law in Idaho regarding the waiver of attorney-client privilege by trustees or attorneys in the context of trusts were not directly provided in the Idaho case law search results.

If the trustee consults with the Trust Protector lawyer, and the trustee is not a client of the Trust Protector lawyer, does that create an attorney-client relationship with the trustee and is this communication protected under privilege in Idaho?

Based on the provided excerpts from Idaho case law:

1. Attorney-Client Relationship: The foundation of an attorney malpractice claim in Idaho is the existence of an attorney-client relationship. Specifically, the elements of a legal malpractice action in Idaho include:
   1. The creation of an attorney-client relationship.
   2. The existence of a duty on the part of the lawyer.
   3. The breach of the duty or the standard of care by the lawyer.
   4. The failure to perform the duty was a proximate cause of the damages suffered by the client. [Source: “Harrigfeld v. Hancock“, “McColm-Traska v. Baker“, and “Johnson v. Jones“]
2. Scope of the Relationship: The scope of an attorney’s duty to a client is defined by the purposes for which the attorney is retained. [Source: “Blough v. Wellman“]

Given the above principles, if the trustee consults with the Trust Protector lawyer and the trustee is not a client of the Trust Protector lawyer, several factors would determine whether an attorney-client relationship is formed:

• Nature of the Consultation: If the trustee seeks legal advice in their capacity as a trustee and the Trust Protector lawyer provides such advice, it could potentially create an attorney-client relationship, even if the trustee is not the Trust Protector lawyer’s primary client.
• Expectation of Confidentiality: If the trustee communicates with the Trust Protector lawyer with the expectation that the communication is confidential and for the purpose of seeking legal advice, it could strengthen the argument for the existence of an attorney-client relationship.
• Protection of Communications: If an attorney-client relationship is established, the communications between the trustee and the Trust Protector lawyer would generally be protected by the attorney-client privilege.

It’s essential to note that the specific circumstances surrounding the communication, the nature of the advice sought, and the actions or inactions of both the trustee and the Trust Protector lawyer can all influence whether an attorney-client relationship is formed and whether the privilege applies.

The formation of an attorney-client relationship and the application of privilege depend on the specific facts and circumstances of the interaction between the trustee and the Trust Protector lawyer. 

If there is an attorney-client relationship with the trustee, who owns the privilege and who has the power to waive the privilege?

In the context of trusts and the attorney-client privilege:

• Who Owns the Privilege:

1. 1. The privilege is owned by the client. In the context of a trust, the “client” is typically the trust itself. However, since a trust is a legal entity and cannot act on its own, it acts through its fiduciaries, such as the trustee.
   2. When a trustee seeks legal advice regarding the administration of the trust, the attorney represents the trustee in the trustee’s fiduciary capacity. In this scenario, the trustee is essentially acting as the client’s (trust’s) representative. Therefore, while the trust technically owns the privilege, the trustee, acting in their fiduciary capacity, holds and exercises the privilege on behalf of the trust.

• Who Has the Power to Waive the Privilege:

1. 1. The power to waive the attorney-client privilege generally rests with the holder of the privilege. In the trust context, this would be the trustee when acting in their fiduciary capacity on behalf of the trust.
   2. It’s important to note that the trustee must act in the best interests of the trust and its beneficiaries. Waiving the attorney-client privilege is a significant decision, and the trustee would need to ensure that such a waiver aligns with the trust’s best interests and the trustee’s fiduciary duties.

• Potential Conflicts:

1. Issues can arise when there are multiple trustees, or when the interests of the trust diverge from the personal interests of the trustee. In such cases, decisions about waiving the privilege may become more complex.
2. Additionally, if beneficiaries or other interested parties believe that the trustee has inappropriately waived the privilege, they might challenge the trustee’s decision in court.

In the context of a trust, the trustee, when acting in their fiduciary capacity on behalf of the trust, typically holds and exercises the attorney-client privilege. 

The trustee has the power to waive the privilege, but must always act in the best interests of the trust and its beneficiaries when making such decisions. 

Can the grantor claim attorney client privilege?

Yes, the grantor can claim attorney-client privilege, but the context in which the privilege is claimed is crucial. Here’s a breakdown:

1. Grantor’s Personal Legal Matters: If the grantor consults an attorney for personal legal advice, separate from matters related to the trust, the communications between the grantor and the attorney would generally be protected by the attorney-client privilege. The grantor would be the client in this scenario, and the privilege would protect confidential communications made for the purpose of obtaining legal advice.
2. Creation of the Trust: When a grantor consults an attorney to create a trust, the communications related to the drafting and establishment of the trust are typically protected by the attorney-client privilege. In this context, the grantor is the client seeking legal advice about creating a trust.
3. After the Trust is Established: Once the trust is established and operational, the trustee steps into the role of managing the trust and its assets. If the trustee consults an attorney regarding the administration of the trust, the attorney-client privilege typically protects those communications, with the trust being the client (represented by the trustee). The grantor, unless acting in some other capacity related to the trust, would generally not be a party to these privileged communications.
4. Potential Conflicts: Issues can arise when the grantor’s interests diverge from the interests of the trust or its beneficiaries. If the grantor seeks legal advice in a capacity that conflicts with the trust’s interests, the applicability of the attorney-client privilege may become more complex.

The grantor can claim attorney-client privilege for communications related to personal legal matters or the creation of the trust. 

However, once the trust is established, the trustee typically holds the privilege for matters related to the trust’s administration. 

The specific context and nature of the communications determine the applicability of the privilege. 

From the cases retrieved:

1. State v. Cortez references the attorney-client privilege and discusses the joint-client exception to the privilege. Specifically, Idaho Rule of Evidence 502(d) lists the joint-client exceptions to the attorney-client privilege. However, this case primarily focuses on the joint-client exception and does not directly address the grantor’s ability to claim attorney-client privilege in the context of a trust.
2. State v. Iwakiri cites a portion of Idaho’s statutory scheme regarding privileged communications, stating that an attorney cannot be examined about any communication made by the client to the attorney or the attorney’s advice given in the course of professional employment without the client’s consent.
3. State v. Robins references I.R.E. 502(b), which describes the attorney-client privilege. It states that 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.

None of the cases directly address the specific issue of whether a grantor of a trust in Idaho can claim attorney-client privilege.

Based on general principles of attorney-client privilege, a grantor can claim the privilege for communications related to personal legal matters or the creation of the trust. 

Once the trust is established, the trustee typically holds the privilege for matters related to the trust’s administration. 

Can the trustee and the grantor have the same attorney who is also the trust protector in Idaho?

Based on general principles of trust law and legal ethics:

1. Same Attorney for Trustee and Grantor: It is possible for the trustee and the grantor to have the same attorney, but there are potential conflict of interest concerns. The interests of the trustee and the grantor may not always align, especially if disputes arise regarding the administration or interpretation of the trust. If a conflict arises, the attorney may need to withdraw from representing one or both parties or take other appropriate steps to address the conflict.
2. Attorney as Trust Protector: A trust protector is a person appointed to oversee the trustee and has specific powers to intervene in the administration of the trust, such as removing a trustee or amending trust provisions. An attorney can serve as a trust protector, but again, there are potential conflict of interest concerns. If the attorney is also representing the trustee or the grantor, they must ensure that their role as trust protector does not conflict with their duties to their client.
3. Ethical Considerations: Attorneys are bound by ethical rules, including rules related to conflicts of interest. In situations where an attorney represents multiple parties or takes on multiple roles, they must ensure that they can adequately represent the interests of each party without compromising their duties.

In Idaho, as in many jurisdictions, the key consideration would be whether there are any conflicts of interest and whether the attorney can adequately represent the interests of all parties involved.

If we’re suing the grantor and the successor trustees, can the former trustee claim privilege against the successor trustees?

When the former trustee initiates a lawsuit against the successor trustees:

1. Nature of the Communications: The attorney-client privilege protects confidential communications between an attorney and a client made for the purpose of obtaining legal advice. If the former trustee sought legal advice in their capacity as trustee regarding the administration of the trust, those communications might still be protected by the attorney-client privilege.
2. Who is the “Client”: In the context of a trust, the “client” is typically the trust itself, represented by the trustee in their fiduciary capacity. However, if the former trustee is suing the successor trustees, the former trustee might argue that certain communications are personal in nature and not related to the trust’s administration, thereby asserting a personal privilege.
3. Successor Trustees’ Rights: Even though the former trustee is the plaintiff, the successor trustees, in their defense, might seek access to privileged communications related to the trust’s administration to understand decisions or actions taken by the former trustee. The successor trustees might argue that they have a right to these communications because they are now responsible for the trust’s administration.
4. Litigation Context: In the context of the lawsuit, the former trustee might assert the attorney-client privilege to protect communications that are personal or that were made in anticipation of litigation. However, the court will need to determine the relevance and applicability of the privilege, especially if the communications are pertinent to the issues in the lawsuit.

When a former trustee sues successor trustees, the former trustee might assert the attorney-client privilege to protect certain communications. 

However, the successor trustees may challenge this assertion, especially if the communications are relevant to the lawsuit. 

If the trustee discloses trust information to a third party, does this waive the attorney client privilege in Idaho?

The search results in Idaho case law and statutory law provide some insight into the attorney-client privilege in Idaho, but they do not directly address the specific question of whether a trustee’s disclosure of trust information to a third party waives the attorney-client privilege.

However, based on general principles of attorney-client privilege:

1. Nature of Attorney-Client Privilege: The attorney-client privilege protects confidential communications between a client and their attorney made for the purpose of obtaining legal advice. The primary goal of this privilege is to encourage open and honest communication between clients and their attorneys.
2. Waiver of Privilege: Generally, the privilege can be waived if the client (or someone with the authority to do so on the client’s behalf) discloses the privileged communication to a third party. Once waived, the communication may be subject to discovery and admissibility in legal proceedings.
3. Trustee’s Role: In the context of a trust, the trustee acts on behalf of the trust. If the trustee, in their fiduciary capacity, discloses privileged communications related to the trust to a third party, it could potentially waive the attorney-client privilege for those communications.
4. Idaho Specifics: The Idaho Code § 9-203(2) states that an attorney cannot be examined about any communication made by the client to the attorney or the advice given thereon during professional employment without the client’s consent. This provision underscores the importance of confidentiality in the attorney-client relationship.

While the general principle suggests that disclosure of privileged information to a third party can result in a waiver of the privilege, the specific application of this principle in the context of trusts in Idaho would require a more detailed analysis of Idaho case law and statutes. 

Who can claim privilege?

1. Attorney-Client Privilege: The client holds the privilege, which means the client has the right to prevent the attorney from disclosing confidential communications. In the context of a corporation, the privilege can be claimed by the corporation itself, typically through its officers or directors.
2. Doctor-Patient Privilege: The patient holds the privilege and can prevent the doctor from disclosing confidential medical information.
3. Spousal Privilege: Either spouse can claim the privilege to prevent the disclosure of confidential communications made between them during the marriage.
4. Clergy-Penitent Privilege: The person confessing or seeking spiritual advice holds the privilege and can prevent the clergy member from disclosing what was said.
5. Therapist-Patient Privilege: The patient holds the privilege and can prevent the therapist from disclosing confidential communications.

When can you claim privilege?

Privilege can be claimed whenever there is an attempt to disclose or discover confidential communications that fall within one of the recognized privileged relationships. 

This often arises in legal proceedings when one party seeks to introduce evidence or testimony that is protected by privilege.

If privilege has been waived, how can you reclaim it?

Once privilege is waived, it’s generally considered to be permanently waived for the specific communication in question. 

However, in some situations, if the waiver was inadvertent and steps were taken immediately to rectify the mistake, courts might recognize the privilege. 

The ability to “reclaim” a waived privilege varies by jurisdiction and the specific circumstances of the waiver.

If you’ve waived privilege and your attorney speaks, can you stop your attorney from speaking?

If you’ve waived privilege, your attorney may be free to disclose the previously privileged information. 

However, attorneys are also bound by ethical duties, including duties of loyalty and confidentiality. 

Even if the attorney-client privilege is waived, the attorney may still have ethical obligations not to disclose certain information. 

If you do not want your attorney to speak on a particular matter, you should communicate that desire clearly. 

If the attorney begins to speak on a topic you believe to be privileged or confidential, you can object or instruct them to stop, but whether they must comply depends on the legal and ethical rules of the jurisdiction.

Can a grantor claim privilege when grantors lawyer shares information with the trustee and the trustee shares information with a third party?

Idaho case law dooes not provide a direct answer to the specific question of whether a grantor can claim privilege when the grantor’s lawyer shares information with the trustee, and the trustee subsequently shares that information with a third party.

However, based on general legal principles:

1. Attorney-Client Privilege: This privilege protects confidential communications between a client and their attorney made for the purpose of obtaining legal advice. If the client (in this case, the grantor) voluntarily discloses or consents to the disclosure of a privileged communication to a third party (in this case, the trustee), the privilege may be considered waived for that specific communication.
2. Subsequent Disclosure by Trustee: If the trustee, who is not the original client, then shares that information with another third party, the initial waiver by the grantor might mean that the grantor cannot later object to this subsequent disclosure based on attorney-client privilege. This is because the privilege was already waived when the grantor allowed the attorney to share the information with the trustee.
3. Factors to Consider: The ability to claim privilege might depend on several factors, including:
   1. Whether the grantor explicitly or implicitly consented to the initial disclosure to the trustee.
   2. The nature of the relationship between the grantor, trustee, and the third party.
   3. Whether the disclosure to the trustee was made in confidence or with the expectation that the trustee would keep the information confidential.
   4. The purpose of the subsequent disclosure by the trustee to the third party.

Idaho Rule of Evidence 502(d). What specifically does it mean?

Idaho Rule of Evidence 502(d) as mentioned in the case State v. Cortez.

The relevant excerpt from the case is:

“Idaho Rule of Evidence 502(d) lists the joint-client exceptions to the attorney-client privilege. Idaho Rule of Evidence 502(d)(5) specifically provides that the attorney-client privilege will not apply ‘to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.'”

In simpler terms, Idaho Rule of Evidence 502(d)(5) addresses situations where multiple clients (joint clients) share a common lawyer. 

Here’s what it means:

1. Joint Clients: This rule applies when two or more clients have a shared interest in a matter and consult or retain the same lawyer regarding that matter.
2. Waiver of Privilege: The attorney-client privilege, which typically protects communications between a client and their attorney, does not apply in certain situations under this rule. Specifically, if these joint clients later have a legal dispute among themselves related to their common interest, communications they had with their shared lawyer can be introduced as evidence.
3. Example: Imagine two business partners jointly hire a lawyer to draft a contract for their shared business venture. Later, if they have a legal dispute about that contract, communications they both had with that lawyer about the contract could be used as evidence in their legal dispute, even though such communications would typically be protected by attorney-client privilege.

In essence, Rule 502(d)(5) recognizes that when multiple clients share a lawyer for a common purpose, the typical protections of attorney-client privilege might not apply in the same way, especially if those clients later have a legal dispute related to their shared interest.

This rule aims to balance the protection of confidential communications with the need for relevant evidence in legal disputes. 

It’s a specific exception to the general rule of attorney-client privilege, tailored for situations involving joint clients.

Privilege – what evidence could they claim as privileged but was waived?

1. I.R.E. 510. Waiver of Privilege by Voluntary Disclosure.
   1. A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.
2. I.R.P.C. 1.6 CONFIDENTIALITY OF INFORMATION, 
   1. States that “[a] lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
3. Skelton v. Spencer, 565 P.2d 1374

• “But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets. And if the client has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney. When Mrs. Blackburn entered upon a line of defense which involved what transpired between herself and Mr. Weatherford, and respecting which she testified, she waived her right to object to his giving his own account of the matter.”

10 ways an irrevocable trust team can waive attorney-client privilege and accountant client privilege in Idaho. 

The trust team consists of a trust protecter lawyer, trustee, grantor, and two primary beneficiaries, a death beneficiary, and two remainder beneficiaries.

In general, the attorney-client privilege and accountant-client privilege are designed to protect the confidentiality of communications between a client and their attorney or accountant, respectively. 

Waiving these privileges means that the protected communications can be disclosed to third parties or used as evidence in court.

In the context of an irrevocable trust in Idaho (or elsewhere), the following are potential ways the trust team might waive these privileges:

1. Express Waiver: The most straightforward way to waive the privilege is by expressly stating the intention to do so. This could be in writing or verbally, but a written waiver is clearer and less likely to be disputed.
2. Inadvertent Disclosure: If privileged information is accidentally shared with third parties, it might result in a waiver of the privilege, at least with respect to the disclosed information. However, the specific circumstances of the disclosure and any efforts to rectify the mistake can impact whether the privilege is deemed waived.
3. Sharing Privileged Information with Third Parties: If members of the trust team share privileged information with individuals outside of the trust team (who are not themselves covered by the privilege), this could result in a waiver.
4. Seeking Advice from a Third Party: If the trust team shares privileged information with another advisor or consultant not covered by the privilege, this could be seen as a waiver.
5. Putting Privilege at Issue: If the trust team raises a legal claim or defense that relies on privileged communications (e.g., claiming they relied on legal advice to take a certain action), they might be seen as putting the privileged communication “at issue,” which could result in a waiver.
6. Failure to Assert the Privilege: If the trust team does not timely assert the privilege in legal proceedings when the privileged information is sought, they might be seen as waiving the privilege.
7. Joint Client Exception: If two or more members of the trust team jointly consult an attorney or accountant, they might all be considered joint clients. If one joint client later discloses the privileged communication to a third party, it could waive the privilege for all joint clients.
8. Common Interest Exception: Sometimes, parties with a common legal interest can share privileged information without waiving the privilege. However, if the common interest is not maintained or if the information is shared beyond those with the common interest, the privilege might be waived.
9. Documenting the Waiver: In some situations, the trust document or another agreement might specify conditions under which the privilege can be waived. It’s important to review any such documents to understand the terms.
10. Beneficiary Requests: In some jurisdictions, beneficiaries might have the right to certain information about the trust. If this information includes privileged communications and the trustee provides it, there might be questions about whether the privilege has been waived.

If the trust protector shares information with the trustee and the trusee tells a third party, does that waive privilege for the entire trust team? Can any member of the trust team claim privilege of one of the team members shares privileged information with a third party or future beneficiary?

1. Trust Protector Sharing Information with Trustee: The trust protector and the trustee both have roles in the administration and oversight of the trust. If the trust protector shares privileged information with the trustee, it’s possible that the privilege is maintained, especially if the trustee needs that information to fulfill their fiduciary duties. However, if the trustee then shares that privileged information with a third party, the privilege might be waived, at least with respect to the disclosed information.
2. Waiver for the Entire Trust Team: Whether the privilege is waived for the entire trust team depends on the nature of the communication, the roles of the parties involved, and the purpose for which the information was shared. If, for example, the trust protector was communicating with an attorney on behalf of the entire trust team, and that communication was then shared by the trustee with a third party, it might be argued that the privilege was waived for the entire team. However, if the communication was specific to the trust protector’s role and not on behalf of the entire team, the waiver might be more limited.
3. Claiming Privilege After Disclosure: Generally, once privileged information is disclosed to a third party (outside of those covered by the privilege or any applicable exceptions), the privilege is waived, and it cannot be “reclaimed.” However, the scope of the waiver (i.e., whether it applies to just the disclosed information or more broadly) can vary based on the circumstances.
4. Future Beneficiary: Sharing privileged information with a future beneficiary can be tricky. Beneficiaries often have rights to certain information about the trust, but this doesn’t necessarily include privileged communications. If a member of the trust team shares privileged information with a future beneficiary, it might be seen as waiving the privilege, at least with respect to that information. 

In all these scenarios, the specifics of the trust document, the roles and duties of the trust team members, the nature of the privileged communication, and the jurisdiction’s laws and court decisions will play a significant role in determining whether and to what extent the privilege is waived. 

If the grantor shares information with the trustee about lawyer and accountant conversations, is the trustee considered a third party? Does that mean the grantor waived their right to cliam privilege in legal proceedings?

The relationship between a grantor and a trustee in the context of attorney-client or accountant-client privilege can be complex. 

Here’s a general overview:

1. Trustee as a Third Party: Whether a trustee is considered a “third party” in the context of the grantor’s attorney-client or accountant-client privilege depends on the nature of the communication and the reason for sharing it. If the grantor is sharing information with the trustee that is necessary for the trustee to fulfill their fiduciary duties or to administer the trust, it might be argued that the trustee is not a “third party” in the traditional sense and that the privilege is maintained. However, this is a nuanced area, and the specifics can vary based on jurisdiction and the circumstances.
2. Waiver of Privilege: If the grantor shares privileged information with the trustee without a valid reason related to the administration of the trust, there’s a risk that the grantor could be seen as waiving the privilege. Once waived, the privilege typically cannot be “reclaimed,” and the information might be discoverable in legal proceedings.
3. Nature of the Communication: The nature of the communication and the reason for sharing it are crucial. For example, if the grantor shares legal advice they received about personal matters unrelated to the trust, it’s more likely that sharing this with the trustee could be seen as a waiver. On the other hand, if the grantor shares legal advice related to the trust’s administration or the grantor’s duties as they relate to the trust, the argument for maintaining the privilege might be stronger.
4. Explicit Understandings: Sometimes, there might be explicit understandings or provisions in the trust document about the sharing of privileged information. For example, the trust document might specify that certain communications between the grantor and their attorney are to be shared with the trustee and that such sharing does not constitute a waiver of privilege. It’s essential to review any such provisions or understandings.

According to idaho case law, what are all the ways an irrevocable trust team can waive attorney client privilege and accountant client privilege in idaho? 

Based on the search results from Idaho case law, here are some relevant excerpts that touch on the topic of attorney-client privilege and accountant-client privilege:

1. State v. Kristi L. Hurles:
   1. “If the accountant-client privilege does come up again during proceedings on remand, the parties should be mindful that waiver is not an all-or-nothing matter. In other words, waiver can be shown to be complete or partial, affecting some but not all matters between the accountant and the client.”
2. State v. Cortez:
   1. “Idaho Rule of Evidence 502(d) lists the joint-client exceptions to the attorney-client privilege. Idaho Rule of Evidence 502(d)(5) specifically provides that the attorney-client privilege will not apply ‘to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.'”
3. State v. Iwakiri:
   1. “The relevant portion as far as attorney-client reads as follows: ‘An attorney cannot without consent of his client be examined as to any communication made by the client to him or his advice given thereon in the course of professional employment.'”

From the above excerpts, it can be inferred that:

• Waiver of the accountant-client privilege is not an all-or-nothing matter; it can be complete or partial.
• The attorney-client privilege can be waived if there’s a matter of common interest between two or more clients and the communication was made to a commonly retained or consulted lawyer.
• An attorney cannot be examined regarding any communication made by the client without the client’s consent.

However, the specific ways an irrevocable trust team, consisting of a trust protector lawyer, trustee, grantor, and beneficiaries, can waive these privileges in Idaho are not explicitly detailed in the provided excerpts.