Split on fiduciary exception affirms lower court decision

Trial Notebook

By Steven P. Garmisa

Hoey & Farina

Posted June 18, 2021 11:43 AM

This is the second of a two-part column. The first part appeared Thursday.A comment on a trustee’s general duty of disclosure, as articulated in the 1959 Restatement (Second) of Trusts, says trustees can’t claim attorney-client privilege if they used trust assets to pay the lawyer’s fees. According to Section 173, Comment b, a trustee is only “privileged to refrain from communicating to the beneficiary opinions of counsel” if the legal advice was “obtained by him at his own expense and …

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