Tuesday, February 15, 2005
Page 1
State Supreme Court Rules:
Bing Crosby Estate Could Not Pass On Attorney-Client Privilege
By DAVID WATSON, Staff Writer
Singer Bing Crosby’s estate could not pass his attorney-client privilege on to a partnership formed after his death to manage his recording contracts and other business interests, the state Supreme Court ruled yesterday.
The high court unanimously rejected a claim of attorney-client privilege by HLC Properties, Limited. Crosby’s executor and his second wife transferred a number of his business assets, including three recording contracts, to HLC in 1980, three years after the legendary performer died.
Crosby’s real name was Harry Lillis Crosby.
HLC sued MCA Records, Inc., Universal Studios, Inc., and two other companies in 2000, claiming they owed Crosby royalty payments. When MCA sought documents from HLC and Crosby’s former lawyers, O’Melveny & Myers, for use in the litigation, HLC claimed some of them were protected by attorney-client privilege.
Los Angeles Superior Court Judge Terry B. Friedman ruled the privilege expired when the probate of Crosby’s estate was terminated, but in September of 2003 this district’s Court of Appeal disagreed.
Justice Richard M. Mosk said that a group of Crosby’s business managers, not Crosby himself, was the client. He noted that under Evidence Code Sec. 953(d), the holder of the privilege is defined to include the “successor” of an “organization—that is no longer in existence.”
Thus, Mosk reasoned, HLC was entitled to assert the privilege.
Yesterday the Supreme Court agreed with Friedman.
Crosby, not his mangers, was the O’Melveny client, Justice Marvin Baxter said. He noted that even the privilege logs filed by the law firm and HLC identified Crosby as the client.
Crosby also signed the three recording contracts in his individual capacity and they were probated as part of his estate, Baxter observed.
While his business managers did use the term “Bing Crosby Enterprises” to refer to the his business interests in general, the key manager described that usage in his deposition testimony as “just a loose terminology” to “cover everything that [Crosby] did,” Baxter explained.
The record, he said, contained “no evidence” that any entity other than Crosby personally employed the managers and staff of “Bing Crosby Enterprises” or paid their salaries and benefits.
“In sum,” he declared, “the record contains substantial evidence supporting the trial court’s determination that a natural person, Crosby, was the original client who held the attorney-client privilege for the communications pertaining to his three recording contracts. Likewise, the evidence fails to demonstrate, as a matter of law, that Enterprises was the client of the named attorneys with interests of its own or its collective members to protect.”
Baxter went on to reject HLC’s contention that the estate was an “organization” the privileges of which could pass to a “successor” within the meaning of Sec. 953(d).
“Were we to adopt HLC’s position,” he wrote, “the attorney-client privilege of natural persons would survive distribution of their estates and would extend to persons and entities beyond their personal representatives. Regardless whether other statutory schemes categorize estates as organizations for other distinct legislative purposes, our doing so here would nullify section 953’s specific limitation on who may hold the privilege ‘if the client is dead.”—.It also would defeat the legislative mandate calling for the privilege to terminate when a client has died, the personal representative has been discharged, and there is no longer anyone to hold the privilege.”
The case is HLC Properties, Limited v. Superior Court (MCA Records, Inc.), 05 S.O.S. 842.
Copyright 2005, Metropolitan News Company