In Britney Spears’ Conservatorship, Who Holds Attorney-Client Privilege Is Key

Four months ago, few would have guessed how quickly things would drastically change in Britney Spears‘ conservatorship. In the coming weeks, circumstances could prove just as rapidly evolving, with the new temporary conservator of her estate digging into more than a decade’s worth of documents and her new legal team investigates the bombshell allegations she’s made about abuse she says she experienced over the past 13 years.

The next phase is likely to be a discovery fight, according to probate attorneys consulted by The Hollywood Reporter.

“The appointed replacement conservator is a CPA chosen by Britney, John Zabel,” says Vatche Zetjian of Jeffer Mangels Butler & Mitchell, an attorney who specializes in estate, trust and probate litigation. “Therefore, seemingly, the last chapter of the conservatorship has become a third-party forensic accounting to investigate James [aka Jamie] Spears.”

During a Sept. 24 hearing, L.A. County Superior Court Judge Brenda Penny suspended Spears as conservator of his daughter’s estate and instructed him to turn over to Zabel the financial books and other related documents.

“Best case scenario is Jamie turns over everything and Britney’s camp reviews it and decides what additional claims she may want to bring,” says Benny Roshan, chair of Greenberg Glusker’s trusts and probate litigation group. But she doesn’t expect it to be that easy. “There have been smoke signals on these issues that make a reasonable person think a fight is coming, especially since Britney has made it clear there’s going to be a top-to-bottom review of the record and Jamie is not going to escape liability by trying now to do the right thing.”

With an attorney and conservator of her own choosing in place, Zetjian suspects Britney is likely less concerned about the conservatorship itself still being active. “I’m sure she still wants to end it, but she’s on the offensive now,” he says. “She can use the conservatorship as a resource to get to the bottom of things she thought harmed her.”

In a footnote of a Sept. 27 filing, just before the suspension hearing, Britney’s attorney Mathew Rosengart did indicate he’ll go on the offensive and argue that any attorney-client privilege Jamie had while conservator of the estate ended when he was suspended. He cites case law that boils down to this: A fiduciary such as Jamie only holds attorney-client privilege on behalf of the estate while in the role, and if that power is transferred the privilege transfers along with it. So, here, it’s expected Rosengart would argue John Zabel, as Jamie’s successor, is now the holder of the attorney-client privilege on behalf of Britney’s estate and has unfettered access to communications between his predecessor and lawyers with regard to the conservatorship.

Rosengart argued that avoiding the document turnover is one reason why Jamie Spears was pushing for the court to terminate the conservatorship, which would have rendered his suspension petition moot. “He knows that when he is suspended he must turn over the conservatorship files, including purported attorney-client privileged documents (communications with his lawyers), to the new temporary conservator,” he wrote in the filing (bold italics in original). “In light of the most recent disclosures of his misconduct according to the New York Times’ reporting, he is, and should be, particularly concerned about the release of these communications, to be followed by further interrogatories and his sworn deposition.”

The New York Times released a second Spears-centric documentary on Sept. 24, just days before the suspension hearing. In Controlling Britney Spears and a coordinating print piece, a former security employee for a firm that had been hired by the conservatorship alleged Britney’s communications were secretly monitored, including conversations with her then-attorney, Samuel D. Ingham III, through an audio-recording device hidden in her bedroom and an iPad that was set up to mirror Spears’ iPhone. He claimed he was instructed to erase a USB drive containing about 180 hours of recordings, but he kept a copy because he didn’t want to “delete evidence.”

In the heated Sept. 29 hearing, Jamie’s attorney, Vivian Thoreen of Holland & Knight, pushed back against the claim that her client had any ulterior motives in moving to terminate the conservatorship and vehemently denied any wrongdoing. She emphasized that ending the arrangement entirely instead of mulling a suspension would save the court time and “free” Britney sooner. After Spears was suspended, she issued a statement calling the decision disappointing and said Jamie has been “biting his tongue and not responding to all the false, speculative, and unsubstantiated attacks on him.”

Regardless of the underlying motivation for filing a termination petition, given the allegations of misconduct, probate attorneys expect the document transfer to be a fight.

Zetjian says the Evidence Code provides the conservator is the holder of a conservatee’s attorney-client privilege. “In the case of trusts, case law provides the privilege regarding communications concerning trust administration belongs to the trusteeship, and would thus pass to successor trustees,” he says. “Mr. Rosengart will argue that this same rule should apply to conservators, who, like trustees, act as a fiduciary, which is a compelling argument.”

Roshan agrees. “Upon his suspension, Jamie must turn over all conservatorship files and documents to the interim conservator of the estate including privileged communications,” she says. “The holder of the attorney-client privilege is now Zabel and, unless Jamie can show he is entitled to withhold certain defensive documents from production, he must turn them over.”

Determining which documents would qualify to be held back won’t be simple, either.

“Obviously, the tactic is to get the Holland & Knight emails and hope to find evidence from the horse’s mouth regarding purported wrongdoing,” says Zetjian. “Communications regarding avoiding personal liability maintain privilege, as opposed to communications about administering the conservatorship. But when communicating with the same attorney and paying that attorney from conservatorship funds, it will be difficult to distinguish personal versus administrative communications. Therefore, it is possible the court orders James Spears must produce to Mr. Zabel all his communications with counsel while he was acting as a conservator.”

The next major hearing is currently set for Nov. 12 — which had fans celebrating that #FreeBritney could happen before the artist’s 40th birthday on Dec. 2. That could be, but there’s no roadmap for a unique case like this, and unwinding a complicated arrangement can take time.

The petition for termination of the conservatorship filed by Jamie Spears on Sept. 7 is currently unopposed. That doesn’t mean someone couldn’t oppose ending the arrangement, but there’s no clear indication of who would. Without an opposition on record, it’s possible Judge Penny could opt to terminate the conservatorship on Nov. 12 without further proceedings. However, probate litigators say it’s likely she will tread carefully to ensure ending it is in Spears’ best interest.

“If all parties before the court — conservator, conservatee, and any other friends or family who have appeared in the case — and the investigator’s report all show total unanimity that the conservatorship is no longer needed, these petitions can be summarily granted,” says Matthew Kanin, an attorney at Greenspoon Marder who specializes in estate planning, trust and probate law. “However, those are rare circumstances. The law does not favor an outcome where the probate court just abruptly lifts all protective measures.”

The probate code doesn’t offer guidance on the amount or type of evidence that must be considered, which makes the outcome even more difficult to predict. It merely states: “If the court determines that the conservatorship is no longer required or that grounds for establishment of a conservatorship of the person or estate, or both, no longer exist, the court shall make this finding and shall enter judgment terminating the conservatorship accordingly.”

In the time since Britney shared her emotional testimony on June 23, Penny has allowed the star to choose her own lawyer and approved the temporary conservator of the estate suggested by her team despite objections from Jamie about his qualifications. Those decisions, combined with statements Penny has made in court about Britney’s ability to successfully work over the years, could indicate she’s been shown sufficient evidence that the artist has the capacity to make personal and business decisions for herself.