Court Examines the “Fiduciary Exception” in the Context of Estate Litigation

July 17, 2002

The “fiduciary exception” to the attorney-client privilege sometimes permits the beneficiary of some fiduciary duty to gain access to privileged communications between the fiduciary and its lawyer. Properly considered, this principle is not really an “exception” to the attorney-client privilege. Instead, the law considers the beneficiary to be the real “client,” and therefore entitled to hear what the fiduciary and its lawyer have communicated to one another.

This “fiduciary exception” can apply to estate litigation. In Lawrence v. Cohn, 2002 U.S. Dist. LEXIS 1226 (S.D.N.Y. 2002), the court found that a law firm representing an executor “owed certain fiduciary responsibilities to the estate and, thus, to its beneficiaries.” For this reason, the firm could not assert either the attorney-client privilege or the work-product doctrine against the estate or its beneficiaries.

Lawyers not thinking carefully enough could easily find themselves compelled by this “fiduciary exception” to reveal communications with fiduciaries that the lawyer intended to be kept from the beneficiaries.