Legal Memorandum: Extent of Attorney-Client Privilege in NY

Issue: Extent of Attorney-Client Privilege Between an Estate Trustee and Lawyer Against Claims by Beneficiary in New York.

Area of Law: Estate Planning & Probate
Keywords: Attorney-client privilege; Estate trustee
Jurisdiction: New York
Cited Cases: 796 F.2d 264; 197 F.Supp.2d 16; 756 N.Y.S.2d 367; 74 N.Y.2d 715; 544 N.Y.S.2d 808
Cited Statutes: None
Date: 11/01/2007

The New York courts have moved solidly in the direction of significantly curtailing the use of the attorney-client privilege when the substance of the legal advice obtained by the trustee involves the trustee’s role and capacities as a trustee.  See generally Nassau County Bar Association Committee on Professional Ethics, Op. 97-10, Dec. 17, 1997; Bressler, Amery & Ross, Do You Know When to Say “No”? A Confidential Discussion on Ethics and Professional Responsibility of the Estate Lawyer, New Jersey ACTEC Workshop, Apr. 10, 2002. 

Two frequently cited New York cases establish a fiduciary exception to the attorney-client privilege. In Hoopes v. Carota, 74 N.Y.2d 715, 543 N.E.2d 73, 544 N.Y.S.2d 808 (1989), the court held that because the substance of the legal advice, at least in part, involved the trustee’s capacity as trustee of the trust of which the plaintiffs were beneficiaries and a fiduciary relationship existed, the communications between the trustee and the attorney are not privileged with a showing of good cause.  The court also noted that in some jurisdictions, where a fiduciary relationship is present, it has been held that the attorney-client privilege does not attach at all.  74 N.Y.2d at 718 (citing U.S. v. Evans, 796 F.2d 264, 265-66 (9th Cir 1986)).

In Lawrence v. Cohn 197 F.Supp.2d 16 (S.D.N.Y.2002), the issue was decided under federal law.  The court found that the executor had consulted the attorney only in his capacity as […]

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