Does a Trustee Have Attorney-Client Privilege?

Yes. A trustee has an attorney-client privilege, but the attorney-client privilege is unlike an ordinary attorney-client privilege--just as the relationship itself is a bit unlike an ordinary attorney-client relationship--and it depends on what purposes you are seeking legal advice and counsel.

A. The Attorney-Client Privilege in Administration.

In trust administration, the person acting in the office of trustee holds the attorney-client privilege. This is a very important distinction from ordinary attorney-client relationships because the privilege passes to the person acting in the office of trustee, rather than the person directly.

In ordinary attorney-client relationships, the person retaining the attorney holds the attorney-client privilege and is the controller of when, if at all, any attorney-client communications are released. For trust administrations, however, the controller of this privilege is whoever is acting in the office of trustee. The reason for this is essentially that the administration communications are part of the trust records and property--just as communications with a real estate broker would be--and so whoever is acting as trustee needs access to the communications to properly administer the trust and fulfill their duties to pursue claims for breach of trust against a predecessor trustee, if warranted.

If you are acting as a trustee and exchanging emails with your trust administration attorney, these emails are subject to subsequent discovery by a successor trustee if you are removed. While it can get more complicated than this, you should be mindful of this issue in administering the trust, as such communications could negatively impact your stance in litigation and result in adverse consequences being taken against you.

B. The Attorney-Client Privilege in Litigation or Defensive Purposes.

The courts have found that a person who is a trustee may have a separate attorney-client privilege for purposes of personal liability. This may be held by the person, rather than the office of trustee, but it also requires that you prudently segregate the legal services between administration and defensive purposes. In some cases, it is more prudent to pay a separate attorney from your personal funds, and seek reimbursement from the trust through court proceedings.

C. Other Probate Areas.

Presently, the courts have not expanded this distinction to conservatorships, probate, or powers of attorney. However, it is very likely that the same principles would be applicable to estate proceedings because the administration and need for transfer of such privileged communications by an administrator/executor of the estate is very similar to that of a trustee.

The Evidence Code does provide for these matters separately, and the attorney-client privilege can sometimes become convoluted, and it is best to discuss this with your attorney in the event there are reasons to have defensive counsel. 

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