Mar 1, 2005 12:00 PM

Can We Talk?

By Maureen S. Bateman, partner, and Ellen S. Berkowitz, associate, Holland & Knight, Boston

The most frequently cited reason for lawsuits against attorneys is poor client communication.1 Comprehensive communication is especially critical in the complex, emotional and often conflict-ridden relationships between trustees and beneficiaries. In an effort to mitigate potential liability associated with the role of trustee, fiduciaries can request instructions from the probate court, purchase malpractice or liability insurance, or retain knowledgeable agents to assist with a trust's administration. Such protections may prove useful. But the best safeguard is effective and frequent communication with beneficiaries.

At the most basic level, trustees are under a fiduciary duty to share with the beneficiary essential facts relevant to the beneficiary's interest in the trust. That's simple in theory. It becomes problematic when the trust's investments have declined or a trustee's longstanding client asks that one of the other beneficiaries be kept in the dark. Often, there is an added layer of complexity: When the trustee consults his own attorney about trust matters, can the beneficiary pierce the attorney-client privilege to access such communications? The answer is sometimes ‘yes’ and sometimes ‘no.’

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