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Is Attorney Client Privilege Absolute For Fiduciaries of Illinois Trusts or Estates?

Article written by Attorney Kevin O'Flaherty
Updated on
June 23, 2020

The point of attorney-client privilege is so that the client feels comfortable giving all the necessary facts and information to the lawyer who can then make an informed decision that is best for the client. If the client felt that they would be at greater risk than the lawyer if the lawyer were to divulge the client’s private communication than the lawyer would have a difficult time getting the full story from her client. Thus, it is important for the lawyer to explain the ramifications to the client of not being truthful and forthcoming and of the lawyer breaking attorney-client privilege. This trust is the base of the relationship between the attorney and the client. However, the attorney-client privilege is not absolute in Illinois, requiring eight essential elements for the attorney-client privilege to apply.

  1. Legal advice of any kind is clearly sought by the client;
  2. The client is seeking legal advice from a legal professional;
  3. The communication is relating to the purpose of legal counsel;
  4. The communication was made in confidence or at least indicated as such;
  5. The communication was made by the client and not by someone else in the presence of the client who is not a client, even if the information would have come from the client;
  6. The information becomes permanently protected;
  7. The information is protected from disclosure by the client and the lawyer, lest attorney-client privilege is broken (if the client tells a friend the court could interpret the information as no longer attorney-client privilege); and
  8. The protection is not waived by the client.

Attorney-client privilege is a two-way street. Clients can rest easy knowing that both the information shared with the attorney is protected and the advice given to the client is also protected. If this were not the case it would be easy for a court or investigator to glean the information shared by a client from the advice given by the lawyer.

It’s important to note that the court’s opinion on attorney-client privilege in Illinois becomes less transparent in regards to non-verbal communication, communication that is not directed between the client and the attorney, and actions within the attorney’s office. An extreme example of this discrepancy would be if the client, his associate or family member, and the attorney were all in the room together and the client divulged information to the third party or the client struck the third party. The attorney could relay this information to the authorities without the risk of breaking attorney-client privilege. 

Limitations of Attorney-Client Privilege For Fiduciaries of a Trust or Estate In Illinois

The primary question to answer here is, “If a fiduciary hires an attorney to counsel her on matters pertaining to the trust is the information shared between her and the attorney protected by attorney-client privilege?” The quick answer is probably not. The longer answer is that it really depends on what specific information is being communicated between the fiduciary and the attorney, who is trying to get the information, and who is filing suit against the fiduciary. Furthermore, it depends on if the fiduciary being sued is the acting fiduciary or the predecessor. 

Illinois does not consider the attorney for a fiduciary to have an attorney-client relationship with the beneficiaries, but attorney-client privilege does not always protect a fiduciary from disclosure to the beneficiaries. If a fiduciary hired an attorney to advise on certain matters specifically relating to herself as the fiduciary then attorney-client privilege would likely protect that information. But under the law, the burden of proof falls on the defendant to distinguish her own interest from those of the beneficiaries. What this means is if the fiduciary can prove that the communication between her and her attorney would have had no impact on the beneficiaries then the information should remain protected under attorney-client privilege. 

It is not as simple as labeling a conversation as “personal” or “defensive” in order to trigger attorney-client protection. The court will consider to what lengths the attorney and fiduciary go to establish whether the information communicated between the two concerns just the fiduciary or involves the interest of the trust and the beneficiaries. 

If the beneficiaries or a successor fiduciary is attempting to get the information shared between the predecessor fiduciary and her attorney they will likely do so on the grounds that the information is ultimately that of the trust estate and the beneficiaries because the predecessor fiduciary ultimately owes her fiduciary duty to them. But if the predecessor fiduciary can prove that a conversation was related to her own liability as a fiduciary than that information should be protected.

Fiduciary Exception In Illinois

The idea of the fiduciary exception duty is that communication between an attorney and client is not protected from those that the client owes a fiduciary duty. This notion reinforces the above argument that even if the fiduciary exception were to apply in a given case the attorney would not have to communicate information obtained by her at her own expense and for her own protection. Generally, it is best for a fiduciary to have two separate lawyers, one for counsel on matters of the trust, and another for matters pertaining to her own liability and protection. As a fiduciary ultimately owes her fiduciary duty to the trust and beneficiaries any counsel sought and communicated should be considered that of the trust and beneficiaries.

The responsibilities of a fiduciary for a trust or will should not be taken lightly. It’s not uncommon for beneficiaries to take legal action against a fiduciary, especially in estates involving large sums, property, or investment instruments. Being transparent and assuming any communication with legal counsel regarding the trust may come to light can help a fiduciary avoid legal complications later on. Even after stepping down or being removed as fiduciary your communication is still liable to be released under a court order or through the litigation process.

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Is Attorney Client Privilege Absolute For Fiduciaries of Illinois Trusts or Estates?

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