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(District of New Jersey D.C. 01-cv-04183) - page 17 / 30





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the principles enunciated in Talbot and Wynne. In Riggs Nat’l Bank of Wash., D.C. v. Zimmer, 355 A.2d 709 (Del. Ch. 1976), the Delaware Court of Chancery held that the beneficiaries of a trust were entitled to discover a legal memorandum which had been prepared for their trustees in connection with matters of trust administration, and for which the trustees had paid using trust assets. Noting that “American case law is practically nonexistent on the duty of a trustee in this context,” the court looked back to Talbot, Wynne, and Mason and found a clear and applicable rule of trusts. Id. at 712-13. In applying this rule, the court found the memorandum to be discoverable for two reasons. First, the court placed a great deal of weight on the duty of a trustee to furnish information to the trust beneficiaries. Id. at 712, 714. Second, the court found the memorandum discoverable for the equally compelling reason that it determined that counsel’s “real” clients – in whom, under long- standing principle, the attorney-client privilege vested – were the beneficiaries, not the trustees (whom the court described as mere representatives). Id. at 712-13. Identification of the “real” client was informed by several factors: (1) the content of the advice was for the benefit of the trust, not the trustees; (2) the advice was paid for with assets of the trust, not the trustees; and (3) no adversarial proceeding against the trustees was pending, meaning that the trustees had no need to seek personal legal advice. Id. at 711. Indeed, the court noted that a trustee who properly executes his duties acts only on behalf of the beneficiaries. Id. In this sense, the fiduciary exception is something of a misnomer because it is the beneficiary, rather than the trustee, who is the “client” component of the “attorney- client” privilege.


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