advertisement
Feb 1, 2012 12:00 PM
For the Trustee's Ears Only
Understanding the fiduciary exception to the attorney-client privilege
The attorney-client privilege protects communications between clients and their attorneys by prohibiting their disclosure and admissibility in a judicial proceeding. But, when attorneys represent fiduciaries, the application of the attorney-client privilege becomes more complicated. That's because the fiduciary has duties to the beneficiaries, and those duties may be applied to the attorney representing that fiduciary. Courts in a number of jurisdictions will apply a fiduciary exception to the attorney-client privilege if a beneficiary sues a fiduciary and requests production of communications between the fiduciary and the attorney. Whether courts will apply this exception depends on the nature of the engagement, the jurisdiction, and at times, the attorney's own conduct.
In its typical application, the fiduciary exception requires disclosure of the communications between the attorney and the fiduciary when the communications or the attorney's engagement or advice relates to matters of administration. The two principal rationales for the fiduciary exception are that: (1) the attorney's “real” client in those circumstances is the beneficiary, and the fiduciary is merely the representative or agent of the beneficiary in engaging the attorney's services, and (2) the fiduciary's duty to inform or disclose information related to matters of administration is more important than the privilege. However, as discussed below, courts don't apply the fiduciary exception consistently.
Sign in to
view the full article
Not a subscriber?
Subscribe & Save
Get immediate access to Trust & Estates onlineSubscriber Benefits
Learn more about Trust & Estates magazine, online article access and our free enewsletters.
Topics of Interest
| Estate Tax | Donor Advised Funds |
| GSTs | Family Offices |
| Private Foundations | Life Insurance |
| 2010 Tax Act News | Industry Trends Surveys |
E-Newsletter Signup
Poll
Topics of Interest
| Estate Tax | Donor Advised Funds |
| GSTs | Family Offices |
| Private Foundations | Life Insurance |
| 2010 Tax Act News | Industry Trends Surveys |
E-Newsletter Signup
advertisement
T&E eNewsletters
Wealth Watch 
Wealth Watch is a free e-newsletter delivered twice a month with expert advice on wealth management from Trusts & Estates.
Latest from Wealth Watch
Tech. Review
Technology Review is a free monthly e-newsletter from Trusts & Estates and nationally renowned expert Donald H. Kelley. It is geared to keeping estate planning lawyers current on the latest tech news they can use.
Latest from Tech. Review
Philanthropy Tax Guide
Each month, Conrad Teitell reports on and analyzes as important tax development governing charitable contributions, including how to maximize the benefits and avoid the pitfalls.
Latest from Conrad Teitell
2011 Trust Glossary
Click here to download the 2011 Trust Glossary
50 Years Ago This Month
| 50 years ago, in May 1962, we featured articles such as: "Future of Canadian Trusteeship" by Arthur H. Mingay", "Training Trust Employees" by Ian M. Marr, "What is a Trust Officer?" by Eric J. Brown, and "Selling Services" by Donald I. Webb. |
Conrad Teitell's Guide to Tax Benefits For Charitable Gifts
Click here to view the most up to date guide (September 2011)
Press Releases
advertisement
advertisement
