Supreme Court Issues Opinion on the Application of the Fiduciary Exception to Attorney-Client Privilege in the Trust Context
On June 13, 2011, the Supreme Court issued its opinion in United States v. Jicarilla Apache Nation, 564 U.S. ___ (2011), holding that the fiduciary exception to the attorney-client privilege does not apply to the United States government’s administration of Indian trusts. The fiduciary exception to the attorney-client privilege is a common law rule which has developed to permit 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. In concluding that the fiduciary exception did not apply to compel disclosure of privileged documents by the government to the Indian tribe in the Jicarilla case, the Court considered the scope of the fiduciary exception generally. To support its holding, the Court explained why the government’s role with respect to Indian trusts does not resemble a private trust relationship. Although the ultimate holding has limited application, the Court’s comments regarding the fiduciary exception should be of particular interest to fiduciaries in the context of private trusts and ERISA plan administration and other ERISA fiduciary acts. In addition, while focusing its analysis on the fiduciary exception in the trust context, the Court also cited case law recognizing a fiduciary exception to permit corporate shareholders, in certain limited circumstances, to obtain privileged advice given to corporate management.
Carrie L. Huff, Greta E. Cowart, John M. Collins, The U.S. Supreme Court Addresses Application of the Fiduciary Exception to the Attorney-Client Privilege in the Trust Context, Haynes and Boone’s Newsroom, Jul. 6, 2011.
Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this to my attention.