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Floyd v. Floyd6/13/2005
. Compson, relying on Riggs, requested all correspondence between the trustee and counsel. The court found Riggs did not require disclosure under the facts presented. The court distinguished Riggs as follows:
The Riggs court's analysis hinges on a finding that the beneficiaries were the real clients of the trustee's attorney. Here, the real client is not Mrs. Compson. The opinions and strategy relating to the litigation were provided to the trustee to enable it to regain the assets of the trust and thereby diligently administer the trust to benefit the beneficiaries. Although Mrs. Compson may be a beneficiary of the trust, her position in this suit is antagonistic to the aligned beneficiaries and to her status as a beneficiary of the trust. Mrs. Compson does not stand to benefit from the trustee's actions in this suit. Thus, under the Riggs analysis, she is not the real client of the trustee's attorneys.
Barnett, 629 So.2d at 851.
The Talbot case offers a paradigmatic example as it involves one document which the beneficiaries were entitled to discover and one document which was subject to the attorney-client privilege. As the authors of Privilege and Confidentiality Issues explain:
In Talbot the trustee obtained an opinion of counsel that a certain advance to some of the beneficiaries was permitted under the trust instrument. Funds from the trust estate were used to pay counsel for this opinion. After the trustee was sued in connection with the advance, the trustee obtained another opinion of counsel concerning the proper course to take in litigation. The second opinion was obtained with the trustee's own funds. The court ruled that the beneficiaries of the trust could discover the first opinion because it was obtained with trust estate funds and denied discovery of the second opinion because it was obtained with the trustee's own funds. Although the court never called the beneficiaries "clients" of the trustee's counsel, this seems to be the clear implication of the court's reasoning.
Privilege and Confidentiality Issues at 560-61 (footnotes omitted).
We find the Riggs rationale persuasive. In the instant case, the contested letters pertain to the administration of the trust, not litigation between the parties. Furthermore, attorney Curry was apparently compensated from the corpus of the trust. Although the record is not clear as to the source of Curry's compensation , Laurens wrote him a letter asking that he "keep a separate accounting of the fees generated by the estate--one for the estate and one for Trust A (the QTIP trust that owns the house Anne H. Floyd occupies). Trust A's expenses should be borne by the trust and not by the beneficiaries of the estate." Under these facts, we hold that the attorney-client privilege does not bar Anne, as beneficiary of Trust A, from access to the Curry letters which were generated prior to litigation, and which address the administration of Trust A.
b. Waiver of Attorney-Client Privilege
Even if the attorney-client privilege were to apply, it was waived when Laurens produced the letters in discovery. The attorney-client privilege excludes from evidence confidential communications of a professional nature between attorney and client, unless the client, for whose benefit the rule is established, waives the privilege. Drayton v. Industrial Life & Health Ins. Co., 205 S.C. 98, 31 S.E.2d 148 (1944). State v. Doster, 276 S.C. 647, 284 S.E.2d 218 (1981), edifies:
The attorney-client privilege has long been recognized in this State. The privilege is based upon a public policy that the best interest of society is served by promoting a relationship between the a
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