Understanding the Fiduciary Exception to Attorney-Client Privilege

Hedge funds and private equity firms operate in a complex environment, with an interplay of – and often tension among – financial regulations, fiduciary responsibilities and investment decisions. Because of that, fund managers and executives rely heavily on in-house and outside legal counsel to navigate and manage risks associated with investments and fund operations. Fund principals may feel confident that communications with their attorneys are protected by the well-known attorney-client privilege, but that may not always be the case. In situations in which fiduciary duties are implicated, otherwise privileged communications may be disclosed to investors and partners during disputes, creating legal and reputational risks that are not anticipated or considered when counsel’s advice was sought. Better understanding the so-called fiduciary exception to attorney-client privilege can help investment management professionals identify ways to minimize the possibility and likelihood that communications with counsel will be disclosed to an adverse party and mitigate the impact of those communications in contested proceedings and relationships with partners. This guest article by Pryor Cashman partner David C. Rose addresses the limits to attorney-client privilege; explains the fiduciary exception and when it may apply; and warns that application of that exception may expose management processes to disclosure. For additional insights from Rose, see “How Fund Managers Can Mitigate the Impact of Litigation on Their Transactions and Relationships” (Apr. 4, 2019).

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