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What Fiduciaries Need To Know About Attorney-client Privilege

Most people have a cursory understanding of what the attorney-client privilege does – it keeps interactions between clients and their lawyers confidential and unrecognized, which facilitates accurate and full contact between the client and the lawyer – but many individuals do not know that there are substantial restrictions and exceptions to the privilege, especially for those serving as clients. These critical restrictions and exceptions exist regardless of whether the fiduciary is a licensed fiduciary or merely a person who manages a trust or estate or acts as a guardian of a loved one or a friend.

If you serve as a fiduciary in any capacity, it is crucial that you know when your conversations with your attorney are private and when they are not.


Attorney-Client privilege vests in the office of the fiduciary and not in the person acting as fiduciary.

A successor fiduciary can, therefore, access any confidential correspondence between the previous fiduciary and his or her counsel. This exception to the right of the attorney-client (“Fiduciary Exception”) sometimes comes as a shock to fiduciaries who feel that all interactions with their attorneys are privileged under all circumstances. In addition, any clause in the trust contract that attempts to restrict the Fiduciary Exemption is invalid in public policy where the previous fiduciary is claimed to have committed deliberate fraud, gross negligence or imprudent indifference.


There is a work-around the fiduciary exception

The fiduciary exception to the attorney-client privilege exists because the privilege belongs to the fiduciary’s office and not to the person. Therefore, if the fiduciary maintains personal representation and pays for the services of the solicitor out of his or her own pocket (and not the trust), the Trust Fiduciary shall not apply and the right of the attorney-client shall be retained. So if you are a fiduciary and want to ensure that your correspondence with your attorney are confidential, then you should keep your personal counsel. Otherwise, be mindful that a successor fiduciary will uncover your correspondence.


Fiduciary Beneficiaries are not entitled to confidential communications by the fiduciary

While the successor fiduciary is entitled to confidential communications between the previous fiduciary and his or her lawyers, the beneficiaries of the trust are not entitled to those communications and cannot force them to be discovered. However, as the holder of the right, the successor fiduciary may decide to share the correspondence of the predecessor fiduciary with the beneficiary fiduciaries.


Executors are also subject to a fiduciary exception

As with fiduciaries, the right of the attorney-client belongs to the office of the executor and the successor executor can receive confidential correspondence from any former executor with his or her attorney.


If the Decedent had correspondence with the Attorney during his or her lifetime, the Decedent’s Attorney-Client privilege will be passed to the properly appointed Executor.

But until the estate is closed and the executor is discharged, the right of the attorney-client is extinguished, and any correspondence the Decedent has made with his or her attorney are no longer privileged.

– Conservators are often subject to a fiduciary exception: as with fiduciaries and executors, the successor curator can receive from the successor curator all correspondence between the predecessor curator and his or her solicitor. The attorney-client privilege is passed to the conservator’s successor.


Attorney-Client Privilege rests with Conservator unless there is a Conflict of Interest

If a Conservatorship is in place, the Conservator holds the Attorney-Client privilege unless there is a real or apparent conflict of interest between the Conservator and the Conservator. For example, if the conservatist wants to terminate the conservatism and the conservator objects to the termination, the conservatist may maintain the right of his or her attorney-client with respect to the termination action. But if the conservatee is sued by a third party, the right of the conservatee’s attorney-client would be exercised by the conservator, not the conservatee.


The Rules of Attorney-Client Privilege for Guardians are the same as those of the Conservators

As with the Curators, the privilege of the Attorney-Client follows that the office of Custodian and Successor Custodian can receive protected correspondence between the former Custodian and his or her counsel. The custodian often retains the right of the attorney-client of his or her ward, unless there is a real or apparent conflict of interest between the custodian and the ward, in which case the privilege of the attorney-client stays with the ward.


Agents under the authority of the Attorney

A fiduciary exemption would also apply, meaning that a successor agent would be able to access correspondence between the former agent and his or her attorney.


Service Invoices Conducted Are Confidential In Some Circumstances

Procurator’s invoices for a fiduciary’s client are covered by the right of the attorney-client in ongoing litigation. The explanation is that the details contained in the invoices will provide insight into the legal plan, the discovery of which will give the opposing party an unfair advantage. What is not clear under existing law, however, is how much the right of the attorney-client applies to non-litigation services as to the invoices of the attorney for services such as trust administration. These invoices may or may not be privileged, depending on the circumstances. Fiduciary billing is not entitled to any attorney-client privilege except to the degree that it contains attorney-client protected correspondence or attorney-work items. Any time entries that reveal certain messages or a lawyer’s work product should be redrafted to prevent the right from being accidentally waived.


Other General Exceptions to the Attorney-Client Privilege

There is no privilege of an accountant-client and only a restricted privilege for non-attorney tax practitioners for “tax advice.” In addition, tax return preparation services provided by an attorney are not covered by the attorney-client privilege. There is also no protection between fiduciaries and third parties, such as appraisers, accountants and the like, but the privilege extends to correspondence between the attorney and such third parties where the services of a third party are required to provide information to the attorney to provide legal services to the client. Thus, if the fiduciary wishes to ensure that correspondence with the third-party provider remain confidential, the solicitor, not the fiduciary, should retain the provider. Finally, there is no right of a client’s attorney-client for correspondence by a client requesting legal help to prepare or commit a crime.


Beware about Waiving the Attorney-Client Privilege

even if the Attorney-Client privilege applies, it can easily be waived. Any declaration by the client of his or her correspondence with the attorney could be the basis of a waiver, except if the client did not wish to waive the privilege. (A client overshare on social media advice from a lawyer has been determined to waive the privilege.) It is important that you consult your lawyer on how to ensure that all rights remain intact.

The above list shows some, but nowhere near all, of the complexities that affect interactions between fiduciarys, whether professional or non-professional, and their lawyers. If you act as a fiduciary, it is important to consider these complexities so that you know when your messages are covered by the right of the attorney-client and when they are not.