What Is The Fiduciary Exemption?

by: Ronald M. Katzman

One issue raised in the litigation is the attorney-client privilege. Cases hold that this privilege is generally not applicable to communications between a fiduciary and its attorney.

It is termed the “fiduciary exemption.” It should be noted that the exemption does not apply when the trustee is obtaining advice for the purpose of defending itself against any litigation brought or threatened. There has not been any Pennsylvania appellate holding concerning this principle, although many jurisdictions, including Delaware (Riggs National Bank, et al. v. Zimmer, 355 A. 2d 709 (De.1976), recognize this “fiduciary exception” to the attorney-client privilege. See also Restatement, The Law Governing Lawyers, sec. 134 A (now sec. 84), Comment b.

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