The attorney-client privilege is the cornerstone of the legal profession. It allows clients to communicate freely with their lawyers without fear of disclosure and ensures that attorneys can provide clients with the best advice and representation. In the last several years, however, some states have had to consider whether the nature of the attorney-client privilege differs in the context of trust administration and if the “fiduciary exception” to attorney-client privilege should be abolished. Under the fiduciary exception, if a trustee obtains legal advice to guide the administration of a trust, the trust’s beneficiaries are entitled to the production of otherwise privileged communications between the trustee and their attorney.
Metcalfe, et al. v. Dempze, et al.
Recently, Rhode Island joined a growing number of states in passing legislation abolishing the fiduciary exception. The new Rhode Island Confidential Communications statute, R.I.G.L. Section 18-1-5, is a direct response to a 2024 Superior Court decision, Metcalfe, et al. v. Dempze, et al., 21-5737, 7-12 (Sept. 23, 2024), in which the trial court applied the fiduciary exception for the first time. In Metcalfe, trust beneficiaries sought production of communications between the trustees and their attorneys to support their allegations of breach of fiduciary duty. The beneficiaries’ arguments persuaded the court that the legal advice sought by the trustees was for the ultimate benefit of the beneficiaries (and not the trustees only) and paid for out of trust assets (and not the trustees’ own assets). In allowing the beneficiaries’ discovery motion, the court announced that going forward, Rhode Island would recognize the fiduciary exception, with some exclusions.
The Metcalfe decision, which wasn’t appealed, immediately caused concern among the local trusts and estates bar that their communications with fiduciary-clients were no longer protected. Within months of the ruling, the Rhode Island Bar Association (RIBA), in support of its members, introduced legislation, modeled after a New Hampshire statute, to preserve the attorney-client privilege and override the court’s holding. RIBA’s bill received resounding support, passed unanimously in both the Rhode Island House and Senate and was signed into law by Governor Dan McKee in June 2025.
New Law
Effective June 13, 2025, R.I.G.L. Section 18-1-5(a) provides that “a communication between an attorney and client acting as a trustee or other fiduciary, is privileged and protected from disclosure to the same extent as if the client was acting in the client’s individual capacity, and not acting as trustee or other fiduciary.” R.I.G.L. Section 18-1-5(b) continues that the privilege isn’t waived even if the trustee or other fiduciary has a fiduciary relationship with beneficiaries or uses trust assets to pay their legal fees.
The new law also resolves a related issue that existed in Rhode Island for over two decades, stemming from a different Superior Court case, American Kennel Club Museum of the Dog et al. v. Edwards & Angell, LLP et al., 00-2683, 16-17 (July 26, 2002). In that case, the Superior Court found that a trustee’s attorney owes a “secondary duty” to beneficiaries, making the beneficiaries quasi-clients of the trustee’s attorney. The ambiguous ruling created uncertainty for practitioners over the scope of their obligations to non-client beneficiaries. The holding in American Kennel had never been revisited and is now superseded by R.I.G.L. Section 18-1-5(c), which makes clear that “If an attorney’s client is a trustee or other fiduciary, then the attorney’s client is only the person acting as trustee or other fiduciary.”
Other States
Rhode Island isn’t the first state to protect the attorney-client privilege in trust and other fiduciary matters by statute. As mentioned, R.I.G.L. Section 18-1-5 is modeled after a near identical New Hampshire statute (RSA 564:B:2-205). Other states with similar statutes include Delaware (12 Del. Code Ann. Section 3333), Florida (Fla. Stat. Ann. Section 90.5021), Hawaii (Haw. R. Prob. 42), New York (N.Y. C.P.L.R. Section 4503), and South Carolina (S.C. Code Ann. Section 62-1-110).
With the statute’s enactment, Rhode Island joins a majority of states in rejecting the fiduciary exception through case law or statute. R.I.G.L. Section 18-1-5 is an important safeguard for Rhode Island trust and estate attorneys and their clients. It ensures that lawyers will be able to effectively represent clients, knowing their communications are protected. One takeaway from the Rhode Island experience for those in states where the fiduciary exception has yet to arise is that it may be prudent to enact proactive legislation now to prevent the fiduciary exception from being raised in a litigation matter in their own state.
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