Article on Jicarilla Apache Nation

Gerard G. Brew (Partner, New Jersey) and Dana G. Fitzsimons Jr. (Partner, Virginia) have recently published an article entitled, Jicarilla Apache Nation: U.S. Supreme Court Throws Heat, But Little Light, on the Fiduiciary Exception to the Attorney-Client Privilege, 26 Prob. & Prop. 27 (May/June 2012). Here is the introduction to the article:

It’s Monday morning and you receive your regular weekly call from your client who serves as trustee of several trusts for his family. Usually the calls are routine – question about a tax return, whether yet another beneficiary demand for a discretionary distribution is permitted or how to allocate receipts and expenses between income and principal. But on this particular morning the questions is unusual and your client appears to be headed for trouble. You listen to the trustee’s story and give frank, thorough, and critical comments about the trustee’s actions and how he can straighten things out. You fire a concise e-mail to your client summarizing your discussion, and, as you hit “send,” you think to yourself, It’s a good thing these kinds of things are privileged. Then it hits you – can your client be sure your discussion and e-mail will remain confidential? The answer is more complicated than many assume.