Sunday, September 15, 2013
Mike W. Bartolacci (Thompson Coburn, LLP), Tyler Short (Bryan Cave, LLP), & Bruce Talen (The Commerce Trust Company, St. Louis) have recently published an article entitled, The Attorney-Client Privilege and the Fiduciary Exception: Why Frank Discussions Between Fiduciaries and Their Attorneys Should Be Protected by the Privilege, 48 Real Prop., Trust & Est. L.J. 1 (Spring 2013). Provided below is the synopsis of their article:
The attorney-client privilege generally protects confidential disclosures made by a client to an attorney in order to obtain legal assistance. Many courts in the United States have weakened the privilege by applying an exception for fiduciaries who retain attorneys. The authors identify a trend to narrow or eliminate this fiduciary exception and conclude that the trend should continue because recognizing the attorney-client privilege in the fiduciary context will further the purposes of the privilege without adversely affecting the ability of beneficiaries to receive adequate information about the trust.