Charles E. Rounds Jr., of Suffolk University Law School, has made available for download his article, “The Fiduciary Exception to the Attorney-Client Privilege in the Trust Context”, published in JDSupra. The abstract is as follows:
The drafters of the Uniform Trust Code back in 2000 decided to leave open for further consideration by the courts the extent to which a trustee may claim attorney-client privilege against a beneficiary seeking discovery of attorney-client communications between the trustee and the trustee’s lawyer, the courts now being profoundly split on the question of whom trust counsel represents. See UTC §813 cmt. Reconciling two contradictory inventions of equity, the lawyer’s fiduciary duty to his or her client and the trustee’s fiduciary duty to the beneficiaries, has proven easier said than done when it comes to the disclosure of communications between trustee and trust counsel. One can hardly fault the UTC for being less than enthusiastic about relieving the judiciaries of this hot potato, equity, itself, being a creature of the courts. Now at least one justice on the Supreme Court of Pennsylvania, via In re Estate of McAleer (2021), has signaled that he would be just as happy were Pennsylvania’s legislature to take over attempting to sort out whether there should be some kind of a fiduciary exception to the attorney-client privilege: “In this respect, I submit that the General Assembly has superior tools to gather empirical information and assess advantages and disadvantages on a developed legislative record.” In re Estate of McAleer, 248 A.3d 416, 438 (Penn. 2021) (Justice Saylor’s concurrence). While the Court’s actual disposition in McAleer lurks tentatively at the intersection of the main opinion and the three concurring opinions, the opinions taken together constitute an exhaustive and scholarly treatise on the confusion reigning nation-wide in this particular corner of fiduciary jurisprudence, at least as of April 7, 2021. Whom the trust’s scrivener and trust counsel represent is taken up generally in §8.8 of Loring and Rounds: A Trustee’s Handbook (2021), which section is reproduced in its entirety in the appendix below.
Posted by Marin Larkin, Associate Editor, Wealth Strategies Journal.