Wednesday, December 22, 2010
Tina N. Babel (attorney, St. Louis, Missouri) recently published her article entitled Attorney for the Trust: Does Attorney-Client Privilege Belong to the Trustee or the Beneficiary?, 98 Ill. B.J. 524 (Oct. 2010). The introduction is below:
As attorneys, we learn early on that the attorney-client privilege is sacrosanct. We convince our clients they can tell us anything and it will be protected. Throughout our representation, we are ethically bound to act solely for our clients’ welfare and are committed to doing whatever we can to protect their interest.
When your client is a trustee, however, that may or may not be the case.
There is a split in authority over whether a trustee who retains an attorney does so on his or her own behalf or on the trust’s behalf. As a result, it is unclear in many circumstances whether the attorney-client privilege belongs to the trustee or the beneficiary, especially when there is litigation between them.
In fact, the Uniform Trust Code has left open the extent to which a trustee may claim attorney-client privilege against a beneficiary.1 In addition, it is uncertain whether a successor trustee who takes over the administration of the trust inherits the privilege and can waive it on behalf of the trust.
In Illinois the law is unsettled, although recent case law suggests Illinois courts will adopt the “adversarial relationship” test. Under that approach, beneficiaries have the right to the trustee’s “privileged” communications about administration of the trust until and unless the trustee and ben¬ eficiary relationship becomes “adversarial.”
In short, ownership of the attorney-client privilege is un¬certain when your client is a trustee. Attorneys who are ap-proached by a trustee for representation must be wary and im¬mediately protect their and their client’s – whomever that might be – interests.