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Proposal would codify that fiduciaries retain attorney–client privilege unless waived
Summary
House Bill 310 would clarify that communications between fiduciaries (trustees, personal representatives) and counsel are protected by attorney–client privilege unless the client waives it, supporters told the Judiciary Committee to prevent minority-jurisdiction case law from creating a discoverability exception.
Sponsor Delegate John Carden told the committee that House Bill 310 would codify in the Estates and Trusts Article that a fiduciary—such as a trustee or a personal representative—may receive privileged legal advice and that communications with counsel are not subject to a distinct “fiduciary exception” unless waived.
Trusts-and-estates practitioners testified the change would remove uncertainty in Maryland law. Tommy Grace and Robert Enton, representing the Estates and Trusts Section of the Maryland State Bar and the Maryland Bankers Association respectively, described real-world scenarios—trustees seeking candid legal advice about distributions and tax consequences—where parties rely on privilege to obtain frank legal guidance.
Witnesses said a minority of other jurisdictions have ruled that fiduciary communications are discoverable because beneficiaries might have entitlement to related information; Maryland has not clarified the issue. Supporters urged codification to avoid litigation risk and inconsistency among courts.
Committee members asked how beneficiaries would obtain accountings or information necessary to pursue claims; witnesses said beneficiaries retain statutory rights to accountings and remedies for breach of fiduciary duty, but those rights do not automatically entitle beneficiaries to privileged attorney–fiduciary communications.
No formal committee action was recorded in the hearing transcript; sponsors asked for a favorable report.
