Estate Planning and the Fiduciary Exception to Attorney-Client Privilege

Protecting Estate Counsel's Advice to Trustees Amid Conflicting Court Rulings

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, May 26, 2015

Recorded event now available

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This CLE course will provide guidance to estate planning counsel on whether and to what extent the fiduciary exception to attorney-client privilege applies to their communications with trustees. The panel will examine recent court rulings on the fiduciary exception and explain best practices for preserving the privilege given conflicting court rulings on when the fiduciary exception applies and when it does not.


Courts, counsel and estate trustees and beneficiaries continue to grapple over the critical issue of whether a fiduciary exception applies to privileged communications between trustees and legal counsel.

In June 2014, the Arizona Court of Appeals in Kipnis adopted the fiduciary exception consistent with the Supreme Court’s Jicarilla decision, ruling that the exception applies to legal advice regarding trust administration, but not to legal advice related to non-administration issues such as personal liability. Other states, including California and Texas, have declined to recognize a fiduciary exception.

The application of the fiduciary exception remains in the murky waters of conflicting, nuanced and fact-intensive court rulings. Counsel for fiduciaries must understand situations when the fiduciary exception may or may not apply through a complex analysis of the content, timing and reason for the communication as well as the relevant jurisdiction’s position on the exception.

Listen as our authoritative panel of trust and estate counsel analyzes the parameters of the fiduciary exception and provides approaches to preserve attorney-client privilege when communicating with trustees. The panel will explain how to assert and defend the privilege in litigation and offer lessons from recent rulings and arguments for and against the fiduciary exception to keep confidences protected.



  1. Parameters of fiduciary exception
  2. Scope of fiduciary functions subject to the exception and limitations of exception
  3. Recent court rulings on the fiduciary exception
  4. Best practices for preserving the privilege


The panel will review these and other key issues:

  • What lessons do court rulings offer counsel in developing best practices and advising trustees to protect communications with counsel?
  • In what circumstances can counsel clearly defend the privilege in fiduciary conduct and communications—and how can counsel navigate the grey areas?
  • How do courts determine when a communication was in a trustee’s personal capacity?


Babel, Tina
Tina N. Babel

Carmody MacDonald

Ms. Babel practices in the area of business litigation with a concentration in fiduciary litigation. She...  |  Read More

Laura E. Morris
Laura E. Morris

Warner Norcross & Judd

Ms. Morris concentrates her practice on probate court disputes involving trusts, estates, wills, powers of...  |  Read More

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