The articles from The Law Office of Patricia E. Tichenor, P.L.L.C. are focusing on
the areas of Family Law and Estate Law, and range of other legal areas.

What is Confidential? Attorney-Client Privilege in Virginia

attorney client privilegeKeeping communication between an attorney and their client confidential is an important part of an attorney-client relationship. This is known as “attorney-client privilege,” and the exact definition and inclusions can vary depending on the state.

When working with a lawyer, it’s important that you know the limitations and exceptions of this privilege. Below is a guide to understanding attorney-client privilege in Virginia, including what it covers, what it doesn’t, and what role it plays in estate planning conversations.

What is attorney-client privilege?

Attorney-client privilege is a client’s legal right to disclose confidential information without fear that the attorney will share that information with third parties. In other words, when a client invokes attorney-client privilege, it is meant to prevent their legal representative from disclosing certain personal details. This allows clients to feel more comfortable sharing details about their situations/cases so the attorney can better guide and represent them.

What is covered under attorney-client privilege in Virginia?

Under Rule 1.6 in the Virginia State Bar Professional Guidelines, in Virginia, attorney-client privilege covers any information a client deems confidential, such as information that could embarrass or harm them in any way. Unless the client provides explicit consent to disclose certain pieces of information, their attorney must respect the client’s wishes to keep their confidential communications private.

However, it’s important to understand that not all communications between an attorney and their client are considered “privileged” and confidential.

What are exceptions to attorney-client privilege in Virginia?

While attorney-client privilege does cover a great deal of information, there are some notable exceptions when it is necessary/mandatory for a lawyer to reveal information in Virginia, as briefly mentioned above. The exceptions to attorney-client privilege in Virginia, according to Rule 1.6 in the Virginia State Bar Professional Guidelines, allow attorneys to share confidential information for the following reasons:

  • To comply with the law or court order.
  • To establish a claim or defense on their behalf when in a conflict with the client.
  • To establish a defense against a criminal charge or a claim against the lawyer.
  • To respond to allegations regarding the lawyer’s representation of the client.
  • To prevent death or substantial bodily harm.
  • To participate in a law office management assistance program or other private programs.
  • To protect the client’s interests in the event of the representing lawyer’s death, disability, incapacity, or incompetence.
  • For office management purposes, provided to a trust agency.
  • If the information demonstrates the client perpetuated fraud against a third party related to the subject of representation.
  • If the client intends to commit a crime that might result in reasonably certain death or substantial bodily harm or substantial injury to another’s property.
  • If the information is about the misconduct of another attorney.

Why does attorney-client privilege matter in estate planning cases?

Attorney-client privilege is an important part of working with professional representation and counsel in all legal matters, including estate planning. Understandably, you may not wish for everyone to know your private plans for your estate as you are making them, as this information can cause fights or tension among family members who may feel they are “entitled” to certain assets.

If you invoke attorney-client privilege during discussions with an estate planning attorney and ask them to keep information confidential, they are generally obligated to do so. However, if you authorize your attorney to have otherwise privileged communications with third parties, such as spouses or children who are the beneficiaries of the estate, this waives your attorney-client privilege.

Additionally, the “testamentary exception” to attorney-client privilege usually comes into play during probate cases after the death of the testator, particularly if the estate is being challenged by its heirs. In these cases, it is implied that the decedent would want their counsel to disclose any privileged communications that support their true wishes, which may have been expressed to their attorney during their lifetime.

Are you searching for a Virginia estate planning attorney you can trust who understands and values the importance of attorney-client privilege? The Law Office of Patricia E. Tichenor has been serving Northern Virginia residents for over 20 years to help them create Wills, trusts, and other estate planning tools. Contact us today or schedule a free consultation to discover how we can help you.

What’s the Difference Between a Mediator and an Attorney?

divorce mediator vs attorney
Mediator vs. Attorney |

Divorce mediation is the process in which a couple looking to get a divorce meets with a mutually agreed-upon mediator to discuss the terms of the legal end to their marriage. Mediators neutrally guide the conversation and help the couple reach an agreement on all aspects of a divorce that would normally be litigated and determined by a court. The mediator then puts those agreements into a written Mediation Agreement, which the parties sign.

Using a mediator can be a more affordable alternative to a litigated divorce, but they cannot complete a divorce for you. Here are some questions people often have regarding the differences between a mediator and an attorney, and when to choose one over the other.

Is a mediator a lawyer, and can lawyers be mediators?

The field of mediation is largely unregulated, so non-attorney individuals such as financial advisors or mental health professionals can serve in this role. In the Commonwealth of Virginia, a mediator can complete a certification process with the Virginia Supreme Court as well if desired.

A lawyer can be trained in mediation; however, when they are acting as a mediator, they are not representing either one of the parties. Instead, they are serving as a neutral party that facilitates discussions, rather than acting as a legal advocate. Some divorce attorneys and retired judges choose to be mediators because they have the skills and experience to guide a couple through the process.

What is a mediator’s role in a divorce?

A mediator’s role is to be a neutral guide that helps both parties reach an agreement for them and their children (if there are minor children involved). Throughout the mediation process, they will encourage and support the couple to make their own decisions about the terms and conditions of the divorce in order to reach a final agreement. Once both spouses come to such an agreement, the mediator will help them write a more formal marital settlement agreement to present to a judge, which may be captioned “Mediated Settlement Agreement.”

What is a lawyer’s role in a divorce?

In a litigated divorce, one or both parties may retain their own, separate attorney to represent them in court and present their case to the judge who will determine how to distribute assets and settle the couple’s issues.  During a divorce, an attorney will advocate for their client and advise them on what to do.

Do lawyers and mediators work together?

They can, depending on the situation. Lawyers are not required in mediation sessions and some mediators think the presence of a lawyer can cause unnecessary tension. If one or both parties have a personal attorney present, they may try to steer the conversation and direction of the agreement toward their client. A person can also consult with a lawyer before and after a mediation session, so they’re bolstered by legal precedent. There are some larger, professional mediation service providers in Virginia, however, which do require the parties to have legal representation during mediation, because they feel strongly that the mediator cannot give legal advice and that parties are better protected by having their lawyer (and advocate) by their side.

When should I use a lawyer over a mediator?

Divorce mediation is best for couples who view their situations similarly and want to dissolve the marriage in a timely and cost-effective manner. It allows couples to come to a mutual agreement without legal intervention.

Ideally, an attorney should be present at every legally binding step of the process.  A lawyer or legal case coach who is an experienced family law attorney should also be involved at the end of the process to review a drafted Agreement before it is signed by both parties and filed with a court.

In situations where a spouse is incapacitated, unwilling to mediate, or is accused of being legally at fault for ending the marriage, mediation is often not a workable option and contested divorce litigation is necessary. Mediation requires both parties to be transparent and if a spouse does not have the ability to make sound decisions, they’ll need an advocate in the form of an experienced family law attorney. Similarly, since mediation is a voluntary process, active participation is required by both spouses. If one refuses to cooperate, they’ll need to pursue a litigated divorce.

If you’re facing a divorce, The Law Office of Patricia E. Tichenor can help. We offer full representation for individuals in litigated Virginia divorce cases, as well as affordable “DIY legal” coaching services for uncontested divorces through our firm, My Legal Case Coach.  Contact us today or schedule a free consultation to discover how we can help you.

What Is Post-Mortem Right of Publicity?

right of publicity court case
What Is Post-Mortem Right of Publicity? |

Should someone be able to profit from using your name and likeness after you die? And if so, who exactly should be able to benefit from it?

This was the question at the center of the 2021 Tax Court decision regarding the usage and monetary value of Michael Jackson’s name and image after his death. This highly anticipated case shined a light on the complexities and ethics of the posthumous use of an individual’s “persona.”

While postmortem right of publicity is commonly associated with celebrities, it does impact people outside of that sphere in states like Virginia, where any individual can qualify for this right for a certain period of time after they die. Here’s what post-mortem right of publicity entails and how it impacts estate planning.

What is post-mortem right of publicity?

Having the right of publicity means you have the right to control and profit from the commercial use of your name, image, or likeness. The postmortem right of publicity, as the name implies, passes this right to an executor, trustee, or named beneficiary through a Will, a trust, or another estate planning instrument.

This postmortem right of publicity allows a person’s heirs or named beneficiaries to profit from their persona and crack down on unauthorized commercial exploitation of the decedent. It does, however, have estate tax consequences, as the gross value of the estate is included this right.

Who qualifies for post-mortem right of publicity, and what rights do they get?

Some states dictate that only celebrities qualify for post-mortem rights of publicity, while others protect all individuals. For instance, in New York, only “deceased performers” or “deceased personalities” qualify for postmortem right of publicity. In Virginia, however, any person, regardless of their status, can qualify for this right.

Under the postmortem right of publicity, a deceased individual can protect their name, voice, signature, photograph, or likeness against unauthorized commercial use without prior consent. How long the postmortem right of publicity lasts also depends on the state; Virginia has it set for 20 years after death.

How post-mortem right of publicity impacts estate planning

The post-mortem right of publicity is a relatively new part of estate planning. The laws surrounding this right of publicity have gained more attention because of the case of the Estate of Michael J. Jackson. In his case, the Tax Court directly addressed the taxability of image and likeness and valued his likeness at $4 million, which illustrates the large amount of money that can be at stake in these types of cases.

Considering the post-mortem right of publicity in estate planning is crucial if an heir or named beneficiary could potentially profit from the deceased person’s persona, likeness, etc. Restricting this right of publicity after death could reduce the estate tax value, as well as the value to the heirs or beneficiaries. However, any restrictions would not necessarily factor into the gross value of the estate, as the Tax Court does not include restrictions in their calculations.

One of the most common practices in the case of postmortem right to publicity is to treat it as if it were business planning. When dividing up business interests, it is best to sell or gift them to multiple grantor trusts, so they too can shoulder the potential tax liability. The same is true for post-mortem right of publicity. However, it may be advisable to sell your rights of publicity rather than to gift them to a grantor trust and to appoint an independent trustee, as sales won’t be subject to the Internal Revenue Code Section 2036 regarding the right to enjoy the property of a person’s transferred estate or the income thereof.

Get help with your estate plans

Estate planning can be a complicated process, especially when it comes to more recent rights like the post-mortem right of publicity.

Rather than struggle through this process alone, contact the Law Office of Patricia E. Tichenor for help. We have over 20 years of experience handling estate planning for Virginia residents and can guide you and your family toward the best solutions.

Contact us today to schedule a free 30-minute consultation about your estate planning needs.