SB 135 — Estates and Trusts: Fiduciaries — Attorney–Client Privilege (Maryland)
Status and key dates
- Bill: SB 135 (Maryland, Judicial Proceedings Committee)
- Introduced (Senate): Jan 8, 2025; Assigned to Judicial Proceedings
- Committee action: Committee report favorable; bill adopted by the Senate (recorded actions in committee and on floor)
- Cross-file / companion: HB 310
- Planned effective date (if enacted): October 1, 2025
- Fiscal note: No direct effect on State or local finances; minimal small‑business effect
Purpose / intent
- Clarify and codify that communications between an attorney and a client who is acting in a fiduciary capacity remain protected by the attorney–client privilege unless the client expressly waives the privilege — even when the fiduciary uses fiduciary funds to pay the attorney.
- Confirm that the mere existence of a fiduciary relationship (e.g., between a trustee/agent and a beneficiary) does not, by itself, constitute a waiver of the attorney–client privilege.
Primary provisions
- Adds a new section (15‑117) to the Estates & Trusts Article that:
- States that, unless waived by the client, attorney–client communications with a client who acts as a fiduciary are privileged even if fiduciary funds are used to compensate the attorney for legal services.
- Provides that a fiduciary/beneficiary relationship does not automatically waive privilege for communications between the attorney and the fiduciary.
- Specifies that “fiduciary” includes an agent (as defined in § 17‑101), and by implication covers trustees, executors/administrators, guardians, receivers, and similar roles under Title 15.
Who is affected
- Fiduciaries (trustees, executors, agents under powers of attorney, guardians, etc.) and the attorneys who advise them.
- Beneficiaries and other parties in estate, trust, guardianship, or related litigation (who may seek documents or testimony).
- Courts handling discovery disputes in estate and trust matters.
Practical effects and considerations
- Strengthens and clarifies confidentiality protections for fiduciaries seeking legal advice, reducing ambiguity about whether payment from fiduciary funds defeats privilege.
- May limit beneficiaries’ access to certain communications in litigation and administrative proceedings — access still can be obtained if the fiduciary/client waives the privilege or another applicable exception applies.
- Distinguishes the attorney–client privilege (a rule of evidence protecting compelled disclosure) from the attorney’s broader duty of confidentiality under professional conduct rules.
Fiscal/policy note
- Nonpartisan fiscal review indicates no measurable fiscal impact on State or local governments. The bill is intended as a legal clarification to reduce uncertainty in fiduciary representation and discovery practice.
