Eido M. Walny TEP, founder and managing partner of Walny Legal Group, authored an article for STEP Journal titled “Privilege and Prejudice,” examining the challenges of navigating attorney-client privilege in US trust and estate matters. The article provides practitioners with guidance on safeguarding privilege and avoiding inadvertent waiver in common practice situations.
The article addresses several critical areas where attorney-client privilege faces unique challenges in estate planning practice:
Joint Representation of Family Members
Trust and estate practitioners frequently represent multiple family members. While the common interest doctrine protects communications when parties remain aligned, disagreements create privilege complications. When couples divorce, children disagree with parents, or heirs interpret beneficiary language differently, one client may compel disclosure of attorney communications because the privilege belongs to the client.
Walny advises practitioners to clearly identify whom they represent, disclose potential conflicts of interest, and withdraw quickly when common interests no longer align. In trust administration, someone serving as both trustee and beneficiary often requires separate counsel for each role due to potential conflicts.
The Fiduciary Exception
When attorneys represent fiduciaries such as trustees, the fiduciary exception may require disclosure of attorney-trustee communications to trust beneficiaries. When a trustee obtains legal advice for trust administration funded by trust assets, beneficiaries are considered the true clients and entitled to access those communications.
Courts assess the purpose of legal advice (administrative versus personal liability), the source of payment (trust assets versus personal funds), and whether litigation was anticipated. Some jurisdictions recognize limitations where trustees obtain legal advice for defending their own interests in anticipated litigation.
Interpretation varies significantly across states. Rhode Island recently enacted legislation abolishing the fiduciary exception, providing that communications between attorneys and clients acting as trustees are privileged to the same extent as individual capacity representation.
Walny advises practitioners to familiarize themselves with their jurisdiction’s fiduciary exception rules, inform trustees of confidentiality limitations, and draft engagement letters that distinguish between personal and administrative legal advice.
Risks When Working with Advisory Teams
Clients often request that attorneys communicate with advisory team members such as financial advisors, consultants, or accountants. When third parties become involved in communications, clients may inadvertently waive attorney-client privilege.
Privilege is preserved only if the third party qualifies as an agent of the attorney or client, meaning their participation is reasonably necessary to facilitate client communication. Many advisors do not qualify as agents under this definition.
The Kovel doctrine provides narrow protection where third parties like accountants are necessary to translate or interpret complex information for attorneys to render legal advice effectively. However, courts scrutinize this exception closely. Mere convenience or coordination does not suffice.
Walny recommends that attorneys inform clients when an advisor’s presence will likely waive privilege unless the advisor is facilitating communication by explaining intricate matters. If advisors don’t qualify as agents but clients insist on shared communications, attorneys should obtain written informed consent in advance.
Cross-Border Challenges
Practitioners working with clients across international jurisdictions must recognize that US privilege and confidentiality rules may not be recognized in civil law systems. Many foreign jurisdictions impose confidentiality obligations on attorneys but lack equivalent evidentiary privileges.
Where clients hold assets in multiple countries or are domiciled outside the practitioner’s jurisdiction, practitioners must understand and explain applicable privilege and confidentiality rules. Walny suggests mitigating risk through choice-of-law provisions in trust documents favoring US rules, routing sensitive advice through US counsel, and segregating communications.
Best Practices
Walny concluded that practitioners must remain diligent in upholding attorney-client privilege. Forward-looking steps include clear engagement letters, contemporaneous documentation, informed consent, and jurisdictional awareness to safeguard confidentiality and support effective fiduciary administration.
Full article available at:
STEP Journal – Privilege and Prejudice
Issue 2, 2026