Can the “Fiduciary Exception” Ever Apply to Non-Members of a Union?

September 22, 2004

The so-called “fiduciary exception” to the attorney-client privilege means that the beneficiaries of a fiduciary relationship can sometimes be entitled to know what their fiduciary has communicated to and from its lawyer. One common example involves union members being given access to communications between union officials and the union’s lawyer.

In Harrington v. City of Albuquerque, No. CIV 01-0531 RLH/WDS-ACE, 2004 U.S. Dist. LEXIS 10153 (D.N.M. May 11, 2004), the court found that a union owed even non-members a fiduciary duty of issuing a certain required notice. Over the union’s objections, the court ordered the union to divulge communication with its lawyer about the notice.

The “fiduciary exception” to the privilege is not really an exception at all – it merely correctly identifies the true “client.” In some cases, this identification can come as a surprise.