Get Full Government Meeting Transcripts, Videos, & Alerts Forever!
Get email alerts on the Attorney Client Privilege topic
No spam. Unsubscribe anytime.
Maryland bill would codify attorney‑client privilege for trustees and other fiduciaries
Summary
House Bill 65 would make clear that attorney‑client privilege covers lawyers who advise fiduciaries — trustees, personal representatives and agents under powers of attorney — aiming to prevent litigation over whether beneficiaries can access those communications.
Delegate John Carden introduced House Bill 65 on Jan. 28 before the House Judiciary Committee, saying the measure would "eliminate the uncertainty" about whether attorney‑client privilege applies when attorneys advise fiduciaries such as trustees and personal representatives. "This," Carden said, "allows fiduciaries to be candid and thorough when discussing legal issues with their attorney."
The bill is sponsored by the Estates and Trusts section of the Maryland State Bar Association. Kelly Friederati, testifying for the MSBA, said Maryland has never formally recognized a fiduciary‑exception rule and cited one Maryland decision (the Tricetti case) that acknowledged the issue without adopting an exception. Friederati said a minority of states have recognized a fiduciary exception to the privilege but others — including several that have codified protections — have rejected it. "Maryland has never recognized it," she said, and codifying the privilege for fiduciaries would reduce litigation and expense.
Committee members asked whether case law motivates the bill and who counts as the client in disputes over privilege. Friederati said the bill addresses that question by treating the fiduciary (the trustee or personal representative who retained counsel) as the client; courts retain tools such as surcharging a fiduciary who breaches duties. Committee members also pressed whether beneficiaries could obtain advice paid for with trust assets; Friederati said courts sometimes analyze who paid counsel fees but that the bill codifies Maryland practice allowing fiduciaries to retain counsel and pay fees from the estate.
Evan Richards of the Maryland Bankers Association also testified in support, saying the measure "gives fiduciaries, including bank trust officers, clear protection when seeking legal advice" and strengthens their ability to administer estates without compromising client confidentiality.
No vote was taken during the hearing. The bill was referred to the Estates and Trusts subcommittee for further consideration.
