Attorney-Client Privilege in Maryland Fiduciary Litigation

The Maryland General Assembly recently concluded its 2026 legislative session. One of the bills passed was HB 65, which resolves uncertainty over whether fiduciaries waive attorney-client privilege when they seek legal advice in a fiduciary capacity, and when fiduciary funds are used to pay counsel. Unless it is vetoed by the Governor, this new law will take effect October 1, 2026.

The key provision of this legislation will establish that, unless waived by the client, a communication between an attorney and a client that acts as a fiduciary is subject to the attorney-client privilege even if fiduciary funds are used to compensate the attorney for legal services rendered to the client.  This clarification of the law will be significant in some estate and trust ligation, guardianship disputes, or other disputes involving fiduciaries. In the past, beneficiaries have argued that when a fiduciary seeks legal advice for the benefit of a trust or an estate, and the legal fees are paid out of fiduciary assets, those communications “belong” to the beneficiaries and should not be privileged from disclosure to the beneficiaries.  Through HB 65, the Legislature has now rejected that argument, unless the privilege is actually waived. The bill expressly provides: “The existence of a fiduciary relationship between a fiduciary and a beneficiary does not constitute or give rise to a waiver of the attorney-client privilege.”

This bill, if signed by the Governor, will strengthen privilege assertions in fiduciary litigation by trustees, personal representatives, guardians, agents under powers of attorney, and other fiduciaries. While some jurisdictions outside Maryland recognize a version of the fiduciary exception under which beneficiaries are treated as the “real clients,” HB 65 moves Maryland in the opposite direction, by codifying privilege protection.