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although communications between a client and the attorney may be privileged as to outsiders, they are not privileged inter sese. 8 WIGMORE at § 2312; Matter of Grand Jury Subpoena Duces

Tecum Dated November 16, 1974

406 F. Supp. 381, 387

(S.D.N.Y. 1975). On the other hand, the administration of justice is not improved by protecting communications designed to further a crime or a fraud; such communications consequently fall outside the scope of the attorney-client privilege. United States v. Zolin, 491 U.S. 554, 562-563 (1989). To these exceptions, many courts have added another – the fiduciary exception. The fiduciary exception first emerged in nineteenth- century England as a principle of trust law. Under English common law, when a trustee obtained legal advice relating to his administration of the trust, and not in anticipation of adversarial legal proceedings against him, the beneficiaries of the trust had the right to the production of that advice. See Talbot v. Marshfield, 2 Drew & Sm. 549, 62 Eng. Rep. 728 (Ch. 1865). See also Wynne v. Humbertson, 27 Beav. 421, 54 Eng. Rep. 165 (1858). The theory of the rule was that the trustee obtained the advice using both the authority and the funds of the trust, and

that the trust ran

benefit of advice regarding to the beneficiaries. Talbot,

the administration of the 2 Drew & Sm. at 550-51,

62

Eng.

Rep.

at

729.

The

rule

recognized

in

Talbot

and

Wynne

quickly became well-established e.g., In re Mason, 22 Ch. D. 609

at English (1883).

common

law.

See,

It was not, however, until the 1970s that the fiduciary exception found its way into American case law. American courts adopted the exception in two separate contexts – trusts and shareholder suits. The application to trusts was the more straight-forward of the two, as it involved a direct application of

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