February 29, 2012 Articles

Supreme Court Examines the Fiduciary Exception to Privilege

The Jicarilla decision is instructive as to the applicability and contours of the fiduciary exception to the attorney-client privilege.

By David Dodds

The attorney-client privilege is one of the oldest and most venerable privileges under the common law. However, the privilege is not absolute, and many courts have recognized an exception to the privilege in the context of certain fiduciary relationships. Originally grounded in the common law of trusts, the “fiduciary exception” to the attorney-client privilege permits the beneficiaries of a trust to obtain privileged communications where the trustee obtains legal advice related to the exercise of his fiduciary duties in connection with the administration of the trust. The fiduciary exception has since been applied by courts to other fiduciary relationships beyond the traditional trust context—for example, fiduciary relationships in the Employee Retirement Income Security Act (ERISA) and corporate shareholder contexts.

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