Samuel Braver, Deborah Little, and Mario Santilli Jr. have made available for download their article, Whether there is a fiduciary exception to the attorney client privilege and or work product doctrine is still an open question in Pennsylvania. The abstract is as followed:
On April 7, 2021, the Pennsylvania Supreme Court issued its decision in In re Estate of William K. McAleer, a case that fiduciary litigators and trustees had been watching for some time. At issue was whether Pennsylvania recognizes a “fiduciary exception” to the attorney-client privilege or work product doctrine to allow trust beneficiaries access to attorney-client communications between a trustee and trust counsel. Unfortunately, the Court was unable to reach consensus on the merits as to whether a trustee can refuse a beneficiary’s request for access to these sensitive areas of confidential information with only 6 of the 7 justices participating. Although there is still no clear answer to that question in Pennsylvania, we can glean a few “practice pointers” from the various opinions.
In McAleer, father established a trust for the benefit of his son (the trustee) and the son’s step-brothers. When the trustee revealed in its first and partial trust accounting that roughly $124,000 had been spent from the trust for attorneys’ fees and costs, the other beneficiaries filed a petition for special relief seeking to determine the reasonableness of the fees. In response, the trustee filed a second and final account including trustee fees and the beneficiaries filed objections thereto, contending that both trustee fees and legal fees were excessive.
To download the full opinion, click In re Estate of McAleer
Posted by David Brito, Associate Editor, Wealth Strategies Journal.