J.P. Morgan Trust Company of Delaware v. Hadley Fisher ( 2019 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
J.P. MORGAN TRUST COMPANY OF )
DELAWARE, TRUSTEE OF THE FISHER )
2006 TRUST F/B/O HADLEY FISHER U/A )
DTD 2/16/2006, )
)
Petitioner, )
)
v. ) C.A. No. 12894-VCL
)
HADLEY FISHER and MICHAEL FISHER, )
)
Respondents. )
MEMORANDUM OPINION
Date Submitted: November 19, 2019
Date Decided: December 5, 2019
Richard L. Renck, Oderah C. Nwaeze, Jocelyn M. Borowsky, DUANE MORRIS LLP,
Wilmington, Delaware; Counsel for Petitioner.
Jeffrey S. Goddess, ROSENTHAL, MONHAIT & GODDESS, P.A., Wilmington,
Delaware; Michael H. Friedman, KURZMAN EISENBERG CORBIN & LEVER, LLP,
White Plains, New York; Counsel for Hadley Fisher.
Christopher P. Simon, Kevin S. Mann, CROSS & SIMON LLC, Guardian Ad Litem for
Michael Fisher and the interests of other minor and unborn issue of Hadley Fisher.
LASTER, V.C.
A trustee sued the trust’s beneficiaries seeking a broad declaration that the trustee
had acted properly in all respects. During discovery, the trustee invoked the attorney-client
privilege for otherwise relevant and responsive documents. The beneficiaries moved to
compel production, relying on Riggs National Bank of Washington, D.C. v. Zimmer, 355
A.2d 709 (Del. Ch. 1976).
The beneficiaries have made the showing necessary under Riggs to obtain
production. Contrary to the trustee’s position, Riggs remains good law and has not been
abrogated by statute. The motion to compel is therefore granted.
I. FACTUAL BACKGROUND
The facts are drawn from the parties’ submissions in connection with the motion to
compel. Given the procedural posture, this decision does not make findings of fact. It rather
describes how matters appear at this stage of the case for purposes of this ruling.
A. The Creation Of The Trust
In February 2006, with his health deteriorating, Richard Fisher entered into an
option agreement with a newly formed Delaware limited liability company named RLF
Assets, LLC (the “Company”). Upon Richard’s death, the option would give the Company
the right to purchase Richard’s ownership interest in Fisher Brothers, a real estate business
valued in the hundreds of millions of dollars (the “Fisher Brothers Option”).1
1
To avoid confusion, this decision refers to members of the Fisher family by their
first names.
The members of the Company were Richard’s three children: Winston, Hadley, and
Alexandra. Richard gave Winston a full member interest that carried both voting and
economic rights. The LLC agreement designated Winston as the Managing Member of the
Company with sole authority to conduct its business and affairs. Richard created trusts for
Hadley and Alexandra. Each trust received a special member interest that did not carry any
voting rights and initially did not have any economic rights. As special members, the trusts
did not have any authority over the Company’s business or affairs.
If Winston caused the Company to exercise the Fisher Brothers Option, then the
Company would begin making distributions to the special members. During each of the
first ten years after the exercise of the Fisher Brothers Option, the Company would
distribute at least $600,000 to each special member and, if sufficient net cash flow was
available, up to $1,200,000. Beginning in the eleventh year after exercise, the minimum
distribution would increase to $700,000 and the maximum to $1,400,000. Any remaining
net cash flow would go to Winston.
The exercise of the Fisher Brothers Option would also give the Company the right
to acquire the special member interests after ten years (the “Special Member Buyout”). The
LLC agreement set the purchase price for each special member interest at $10 million.2
2
This description simplifies a more complex structure that included three additional
buyout windows and a formula for adjusting the buyout price. Because Winston triggered
the Special Member Buyout at the ten-year mark, during the first buyout window, the
complexities are not relevant to this decision.
2
Soon after executing these documents, Richard died. Shortly thereafter, Winston
exercised the Fisher Brothers Option.
B. J.P. Morgan Becomes Successor Trustee.
After Richard’s death, disputes arose among his widow, his children, and the
administrators of his estate. In March 2010, the parties settled. As part of the settlement,
the original trustees for Hadley’s trust resigned. Petitioner J.P. Morgan Trust Company of
Delaware took over as the successor trustee.
From the outset of its service as trustee, J.P. Morgan hoped to recast Hadley’s trust
as a directed trust in which Hadley would act as the investment advisor and J.P. Morgan’s
duties would be limited to following his directives and performing administrative
functions. Hadley never agreed to the amendments. As a result, J.P. Morgan has all of the
duties of a traditional common law trustee, except to the extent modified by the terms of
the trust agreement and Delaware statutory law.
C. The Special Member Buyout
In May 2016, Winston initiated the process for the Special Member Buyout. On
behalf of Hadley’s trust, J.P. Morgan engaged in discussions with Winston. An attorney
from Duane Morris LLP represented the trust and conducted the discussions.
In October 2016, Winston offered two alternatives to the contractual mechanism:
either a cash purchase of the trust’s special member interest for $11.5 million or an
exchange of the special member interest for a pool of securities that Winston would select.
Both would generate a significant tax burden for the trust. Hadley asked J.P. Morgan to
propose a third alternative: a tax-advantaged distribution of real estate that would be held
3
through a special purpose entity. In an internal email, J.P. Morgan described that alternative
as “not something that is acceptable to us” and declined to pursue it. Dkt. 80 Ex. I at ‘375.
On November 1, 2016, Hadley threatened to sue J.P. Morgan if it accepted either of
Winston’s proposals. See id. Ex. J (“He essentially said he will sue if we take one of the
deals on the table. He wants us to arbitrate [against Winston].”). Later that month, J.P.
Morgan accepted the cash proposal.
D. This Litigation
On November 4, 2016, three days after accepting Winston’s proposal, J.P. Morgan
filed this action against Hadley and his minor son, Michael Fisher, who is a contingent
beneficiary of Hadley’s trust. J.P. Morgan’s petition seeks an expansive declaratory
judgment that it complied with its legal and equitable duties in all respects:
Petitioner [J.P. Morgan] therefore seeks a declaration from this Court that the
Petitioner did not abuse its discretion or otherwise breach its duty with
respect to any of the conduct described in this Petition, including, but not
limited to, its acts or omissions with respect to the Buyout, or with respect to
its decision not to pursue a claim against Winston or any of the Co-Trustees
for their acts or omissions related to the Estate Settlement, RLF Agreement
or ratification of the Operating Agreement including the Buyout Clause.
Dkt. 10 ¶ 64.
Hadley contends that J.P. Morgan should have disputed Winston’s ability to trigger
the Special Member Buyout. Hadley maintains that Winston faced a conflict of interest
because he was both a partner in Fisher Brothers and the sole manager of the Company.
Hadley argues that in his latter capacity, Winston owed fiduciary duties to the Company
and all of its members, including Hadley’s trust. Hadley believes that a loyal trustee would
have raised Winston’s conflict, disputed whether the Special Member Buyout complied
4
with the Company’s LLC agreement, and potentially commenced an arbitration against
Winston under the LLC agreement.
Hadley believes that J.P. Morgan gave in to Winston and accepted the cash
alternative because of its own conflicts of interest. First, J.P. Morgan had financial
incentives to cooperate with Winston, because he and Fisher Brothers provide the bank
with substantial revenue. Second, J.P. Morgan had long wanted to exit from its role as a
common law trustee responsible for a non-diversified interest in a closely held business,
and the cash alternative would achieve that goal. Third, the cash alternative would generate
a pool of investable funds that J.P. Morgan could manage, creating a stream of future
revenue for the bank.
In discovery, Hadley has developed some evidence to support his theory:
 In a memorandum from April 2010 addressing whether J.P. Morgan should accept
the role of trustee, J.P. Morgan noted that although the fee for Hadley’s trust was
only $7,500 annually, “[t]he Executive Wealth Group expects to earn around
$1,000,000 from the Fisher family relationship in 2010.” Dkt. 80 Ex. A at ’124.
 In an October 2012 email exchange in which J.P. Morgan considered withdrawing
from its role as trustee, a J.P. Morgan representative noted, “The critical decision is
if [the relationship manager] thinks JPM resignation will jeopardize his relationship
with Fisher Brothers in any way.” Id. at ’495.
 In an April 2014 email exchange, a J.P. Morgan representative described Hadley’s
trust as something that J.P. Morgan “really should find a way to exit . . . .” Id. at
’671.
 In a November 2014 email exchange, a J.P. Morgan representative described
Hadley’s trust as “a problem child we have been trying to find a way out of for quite
some time.” Dkt. 84 Ex. E at ’761.
 In another November 2014 email exchange, J.P. Morgan representatives debated
whether the bank should resign. One representative asked whether J.P. Morgan
wanted “to stir the pot again” given that “the brothers are clients of the bank.” Id. at
5
’760. Another representative confirmed that “the brothers are big clients of the
bank.” Id.In its opposition to the motion to compel, J.P. Morgan conceded that it considered its client
relationship with the Fisher family when deciding whether to continue as the trustee for
Hadley’s trust. See Dkt. 84 at 7 n.4.
E. The Discovery Dispute
In this litigation, Hadley asked for documents relating to the Special Member
Buyout and J.P. Morgan’s acceptance of the cash alternative. J.P. Morgan produced some
documents, but withheld others. J.P. Morgan’s privilege log identified the attorney-client
privilege as the basis for withholding 570 documents. J.P. Morgan did not rely on the work
product doctrine to withhold any of these documents.
As reflected on its privilege log, J.P. Morgan representatives began communicating
with in-house counsel almost immediately after Winston said he was triggering the Special
Member Buyout. Within the same month, J.P. Morgan began communicating with Duane
Morris, who represented the trust in discussions with Winston.
The descriptions on JP Morgan’s privilege log indicate that counsel was performing
work on behalf of the trust and providing advice in connection with the Special Member
Buyout. JP Morgan’s log used a virtually identical description for 506 entries, identifying
each as a “[c]onfidential communication reflecting request for and provision of legal advice
regarding the Buyout Options.” Dkt. 80 Ex. C. Eighty of these entries related to the tax
implications of the Special Member Buyout for the trust, for which J.P. Morgan added the
description “and their tax implications.” Id. Thirty-one entries referred to claims against
6
Winston, such as “evaluation of self-dealing claims against Winston Fisher.” Id. Still other
descriptions identify documents that concern “Trust administration, the Trust’s finances
and the Trust’s investment decisions.” Id.J.P. Morgan has produced email strings with in-house counsel and with Duane
Morris in which the bank redacted some communications but not others. See id. Exs. F, G,
& H. The court reviewed the redacted portions in camera. The redacted portions relate to
the same subject matter and have the same tenor as the unredacted portions.
For most of the Duane Morris engagement, J.P. Morgan planned to pay Duane
Morris out of the trust corpus. See id. Ex. L, Ex. M at ’973, Ex. N. At some point after
October 2016, J.P. Morgan decided to pay Duane Morris with its own funds.
II. LEGAL ANALYSIS
Hadley moved to compel production of the documents for which J.P. Morgan
invoked the attorney-client privilege. He only seeks documents created before November
1, 2016, when he threatened litigation.
A. Relevant Legal Principles
Delaware Rule of Evidence 502(b) sets forth the basic requirements for invoking
the attorney-client privilege.
A client has a privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client (1)
between the client or the client’s representative and the client’s lawyer or the
lawyer’s representative, (2) between the lawyer and the lawyer’s
representative, (3) by the client or the client’s representative or the client’s
lawyer or a representative of the lawyer to a lawyer or a representative of a
lawyer representing another in a matter of common interest, (4) between
representatives of the client or between the client and a representative of the
7
client, or (5) among lawyers and their representatives representing the same
client.
D.R.E. 502(b).
Even when those requirements are met, the privilege “is not absolute.” Morris v.
Spectra Energy P’rs (DE) GP, 2018 WL 2095241, at *1 (Del. Ch. May 7, 2018). Rule
502(d) contains a non-exclusive list of six exceptions:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit what the
client knew or reasonably should have known to be a crime or fraud;
(2) Claimants through same deceased client. As to a communication relevant
to an issue between parties who claim through the same deceased client,
regardless of whether the claims are by testate or intestate succession or by
inter vivos transaction;
(3) Breach of duty by a lawyer or client. As to a communication relevant to
an issue of breach of duty by the lawyer to the client or by the client to the
lawyer;
(4) Accusations against a lawyer. As to a communication necessary for a
lawyer to defend in a legal proceeding an accusation that the lawyer assisted
the client in criminal or fraudulent conduct;
(5) Document attested by a lawyer. As to a communication relevant to an
issue concerning an attested document to which the lawyer is an attesting
witness; or
(6) Joint clients. As to a communication relevant to a matter of common
interest between or among 2 or more clients if the communication was made
by any of them to a lawyer retained or consulted in common, when offered
in an action between or among any of the clients.
D.R.E. 502(d). Other exceptions are recognized by common law. See Mennen v. Wilm. Tr.
Co., 2013 WL 4083852, at *3 (Del. Ch. July 25, 2013) (rejecting argument that exceptions
in Rule 502(d) are exclusive); see also Buttonwood Tree Value P’rs v. R.L. Polk & Co,
8
Inc., 2018 WL 346036, at *2 (Del. Ch. Jan. 10, 2018) (noting that Rule 502(d) codifies
“some” of the exceptions); Morris, 2018 WL 2095241, at *1 (same).
One long-recognized exception authorizes beneficiaries of a trust to gain access to
a trustee’s communications with counsel. The leading decision is Riggs, where the
beneficiaries of a trust sued the trustees “for alleged breaches of the trust in regard to certain
tax matters.” 355 A.3d at 709. A year earlier, the trustees had hired counsel “for the purpose
of securing a legal opinion in connection with the trustees’ pending petition for instructions
and particularly in anticipation of potential tax litigation on behalf of the trust with the
State of Delaware, Division of Revenue.” Id. Counsel prepared a memorandum analyzing
the issues. When the beneficiaries later filed a claim to surcharge the trustees, they sought
the memorandum in discovery.
The court conducted a two-step analysis to determine whether the memorandum
should be produced. The court initially considered whether the trustees had retained
counsel to represent the trust and provide advice that would advance the interests of the
trust and its beneficiaries, or whether the trustees had retained counsel to protect their own
interests, in anticipation of litigation in which the trustees would be defendants. Id. at
71112. To answer this question, the court examined the “the purpose for which [the
memorandum] was prepared, and the party or parties for whose benefit it was procured, in
relation to what litigation was then pending or threatened.” Id. at 711.
The court found that the memorandum “was prepared ultimately for the benefit of
the beneficiaries of the trust and [n]ot for the purpose of the trustees’ own defense in any
9
litigation against themselves.” Id. In reaching this conclusion, the court cited the nature of
the legal issues and litigation then facing the trustees and the trust.
At the time [the memorandum] was prepared the litigation which was then
pending was a petition for instructions, the very nature of which normally
indicates that the trustees were not implicated in any way. There was also the
possibility of potential litigation against the State of Delaware, Division of
Revenue. Both of these actions suggest that the legal assistance to the trustees
would be rendered only in their service to the beneficiaries.
Id. The trustees had not faced any proceedings that would have caused them to seek legal
advice to protect their own interests. There was also no evidence of threatened litigation
against the trustees, and no indication that the purpose of the memorandum “was defensive
on the trustees’ part.” Id.
The Riggs court also noted that the trustee had paid the law firm’s fees out of trust
assets, which the court regarded as “a strong indication of precisely who the real clients
were” and consequently “a significant factor” that weighed in favor of access. Id. at 712.
The payment was not itself dispositive, but rather evidenced counsel’s role.
Based on this showing, the court found that “the ultimate or real clients were the
beneficiaries of the trust . . . .” Id. at 711. The court observed that under those
circumstances, “the trustee, . . . in his capacity as a fiduciary, was, or at least should have
been, acting only on behalf of the beneficiaries in administering the trust.” Id. at 711.
Having concluded that the trustees secured the memorandum as trustees on behalf
of the trust, the court moved to the second step in the inquiry: whether “the beneficiaries
ought to be permitted to inspect documents prepared by an attorney on their behalf though
completed at the request of the trustee or whether the privileges asserted are of such
10
compelling importance as to allow the trustee to withhold the documents . . . .” Id. at 712.
The court noted that treatise writers favored production, quoting one author who stated
flatly: “‘A beneficiary is entitled to inspect opinions of counsel procured by the trustee to
guide him in the administration of the trust.’” Id. (quoting 2 Scott on Trusts § 173 (3d ed.
1967)). The court also regarded production as justified because “the trustees have
substantive fiduciary duties to the beneficiaries” and were obligated “to attend to the
disposition and maintenance of the trust property so that it may be enjoyed by the
beneficiaries . . . .” Id. Continuing, the court explained that “[i]n order for the beneficiaries
to hold the trustee to the proper standards of care and honesty and procure for themselves
the benefits to which they are entitled, their knowledge of the affairs and mechanics of the
trust management is crucial.” Id. Given this interest, the court found a “compelling” case
for permitting the beneficiary to access legal advice that the trustee had obtained for
purposes of administering the trust, as opposed to legal advice procured at the trustee’s
“[o]wn expense and for his [o]wn protection . . . .” Id. The court observed that this outcome
was consistent with the rule under English law, which had stood “for over one hundred
years.” Id. at 712.
The court finally considered the important policies served by the attorney-client
privilege and weighed them against the fiduciary relationship between the trustee and the
beneficiaries. The court concluded that on balance, public policy called for protecting the
fiduciary relationship, even if that meant encroaching on the attorney-client privilege.
As a representative for the beneficiaries of the trust which he is
administering, the trustee is not the real client in the sense that [h]e is
personally being served. And, the beneficiaries are not simply incidental
11
beneficiaries who [c]hance to gain from the professional services rendered.
The very intention of the communication is to aid the beneficiaries. The
trustees here cannot subordinate the fiduciary obligations owed to the
beneficiaries to their own private interests under the guise of attorney-client
privilege. The policy of preserving the full disclosure necessary in the
trustee-beneficiary relationship is here ultimately more important than the
protection of the trustees’ confidence in the attorney for the trust.
Id. at 713–14.
Subsequent Delaware decisions have followed Riggs.3 Consistent with Riggs, the
Restatement (Third) of Trusts summarizes the law as follows: A trustee “ordinarily has a
duty promptly to respond to the request of any beneficiary for information concerning the
trust and its administration, and to permit beneficiaries on a reasonable basis to inspect
trust documents, records, and property holdings.” Restatement (Third) of Trusts § 82(2)
(Am. Law Inst. 2007). The right to information includes access to
legal consultations and advice obtained in the trustee’s fiduciary capacity
concerning decisions or actions to be taken in the course of administering the
trust. Communications of this latter type are subject to the general principle
entitling a beneficiary to information that is reasonably necessary to the
prevention or redress of a breach of trust or otherwise to the enforcement of
the beneficiary’s rights under the trust.
3
Compare Mennen, 2013 WL 4083852, at *7, 10 (granting in part motion to compel
seeking production under Riggs), and In re Heizer Corp., 1987 WL 19560, at *23 (Del.
Ch. Nov. 9, 1987) (ordering production under Riggs), with N.K.S. Distribs., Inc. v. Tigani,
2010 WL 2011603, at *1 (Del. Ch. May 7, 2010) (declining to order production of
documents “prepared on behalf of a trustee in preparation for litigation between a successor
beneficiary and the trustee”), and In re Estate of Calloway, 1996 WL 361504, at *23 (Del.
Ch. June 19, 1996) (denying motion to compel production of memorandum prepared to
analyze defenses to claim).
12
Id. § 82 cmt. f. By contrast, “[a] trustee is privileged to refrain from disclosing to
beneficiaries or co-trustees opinions obtained from, and other communications with,
counsel retained for the trustee’s personal protection in the course, or in anticipation, of
litigation (e.g., for surcharge or removal).” Id.
B. Riggs Applies To The Current Case.
The party seeking to invoke an exception to the attorney-client privilege bears the
burden of showing that it applies. Mennen, 2013 WL 4083852, at *4. In this case, Hadley
has shown that he is entitled to the privileged documents under Riggs.
The first question is whether the documents Hadley seeks involve advice J.P.
Morgan obtained about how to carry out its duties to the trust and its beneficiaries. If so,
then they are subject to production. By contrast, Hadley is not entitled to advice that J.P.
Morgan obtained for its own defense against anticipated, threatened, or asserted claims.
See Riggs, 355 A.2d at 712; Restatement (Third) of Trusts § 82 (Am. Law Inst. 2007).
The record on the motion establishes that J.P. Morgan consulted with in-house
counsel and with Duane Morris to obtain advice about how to carry out its duties to the
trust and its beneficiaries. After Winston said he was triggering the Special Member
Buyout, J.P. Morgan began consulting with counsel about the implications of that act. The
Special Member Buyout affected the sole asset of Hadley’s trust—its special member
interest—so advice regarding the implications of the Special Member Buyout affected core
concerns of the trust and its beneficiaries. The descriptions on J.P. Morgan’s privilege log
support this conclusion; they refer generally to advice regarding the Special Member
Buyout, its tax implications, and claims against Winston. The Special Member Buyout only
13
would have tax implications for the trust, not for J.P. Morgan. Any claims against Winston
likewise would be assets of the trust, not J.P. Morgan. Thus, J.P. Morgan was obtaining
advice in its role as trustee about matters pertaining to the trust.
The few emails that J.P. Morgan has produced indicate that J.P. Morgan obtained
advice on behalf of Hadley’s trust. In one email, a Duane Morris attorney explained that
her litigation partner had “consulted . . . on the pros and cons with respect to responding to
the notice letter.” Dkt. 80 Ex. L. The notice letter was directed to the trust, and the question
of how to respond was a matter for the trust to address. In another, a J.P. Morgan trust
officer asked about positions that the trust would take in negotiations with Winston. See id.
Ex. F at ‘125. Yet another discusses J.P. Morgan’s evaluation of the options that Winston
was offering the trust. See id. Ex. G. Both communications evidence J.P. Morgan acting on
behalf of the trust.
Most tellingly, a Duane Morris attorney represented Hadley’s trust in the
negotiations with Winston. The fact that Duane Morris spoke for the trust demonstrates
that Duane Morris was acting on the trust’s behalf.
As to these items, nothing in the record suggests that J.P. Morgan consulted with
counsel about its own interests or defensively against potential claims. Any uncertainty
about the nature of the advice provided in these documents arises from the repetitive and
cryptic descriptions on J.P. Morgan’s privilege log. J.P. Morgan possesses the actual
documents and was in a position to describe them accurately. If J.P. Morgan could have
characterized them as relating to J.P. Morgan’s own defense, then J.P. Morgan doubtless
would have done so.
14
Other contextual factors likewise support production. Hadley has raised claims
about the divided loyalties of a trustee that find preliminary support in the evidentiary
record. Hadley does not appear to have any other means of accessing the information, and
obtaining access is necessary to evaluate what J.P. Morgan was doing. “[F]or the
beneficiaries to hold the trustee to the proper standards of care and honesty and procure for
themselves the benefits to which they are entitled, their knowledge of the affairs and
mechanics of the trust management is crucial.” Riggs, 355 A.2d at 712. J.P. Morgan also
appears to have invoked privilege in a selective manner by producing certain
communications in email chains while withholding others. Based on the court’s in camera
review, there was no basis for J.P. Morgan to make a partial production. Without obtaining
access to the remaining materials, Hadley faces the risk that J.P. Morgan produced only
material that it deems favorable, while withholding information that might cast its conduct
in a different light. Hadley also is not blindly fishing for information. He has identified
specific communications on J.P. Morgan’s privilege log. He is not seeking communications
that post-date November 1, 2016, the point at which he threatened litigation against the
trustee. He has not sought any advice for which J.P. Morgan has invoked the work product
doctrine.
As to these documents, the beneficiaries’ interest in trust affairs and the trustee’s
duty to provide information outweighs the trustee’s interest in keeping its communications
with counsel secret. Hadley is entitled to production of these documents under Riggs.
There are thirteen items on J.P. Morgan’s privilege log that warrant in camera
review. The descriptions of these items include the tagline “potential litigation with
15
Respondent Hadley Fisher.” See id. Ex. C. J.P. Morgan did not focus on these items in its
briefing, opting instead to defend its claims of privilege globally using expansive
arguments that this decision rejects.
The descriptions of the thirteen items refer principally to discussions of the Special
Member Buyout, Winston’s alleged self-dealing, or administration of the trust. Under
Riggs, without more, J.P. Morgan would have to produce these items. The descriptions for
these items then provide a little bit more in the form of the conclusory reference to
“potential litigation with Respondent Hadley Fisher.” Although J.P. Morgan’s repetitive
and otherwise unsupported use of this conclusory reference could be deemed insufficient
to support a claim of privilege, the court will review the thirteen items in camera.
C. The Scope Of Section 3333
Perhaps anticipating that Riggs requires production, J.P. Morgan claims that in
2015, “the General Assembly rendered Riggs . . . inapplicable by adding subsection (a) to
12 Del. C. § 3333.” Dkt. 84 at 3. According to J.P. Morgan, Riggs “has been superseded
by statute.” Id. at 8. That is incorrect.4
In 2015, the General Assembly amended Section 3333 of title 10, titled “Retention
of counsel by fiduciary,” as follows:
(a) In the case of a fiduciary that retains counsel in connection with
any matter whether or not related to any claim that has been or might be
asserted against the fiduciary and pays such counsel’s fees and related
4
This is the second time that a trustee has argued that a statutory amendment that
did not reference Riggs nevertheless overruled the fiduciary-exception. This court
previously rejected similar arguments in Mennen, 2013 WL 4083852, at *3.
16
expenses entirely from such fiduciary’s own funds, any communications
with such counsel shall be deemed to be within the attorney-client privilege.
(b) Except as otherwise provided in the governing instrument, a
fiduciary may retain counsel in connection with any matter that is or that
might reasonably be believed to be one that will become the subject of or
related to a claim claim that has been or might be asserted against the
fiduciary, and the payment of counsel fees and related expenses from the
fund with respect to which the fiduciary acts as such shall not cause the
fiduciary to waive or to be deemed to have waived any right or privilege
including, without limitation, the attorney-client privilege even if the
communications with counsel had the effect of guiding the fiduciary in the
performance of fiduciary duties.
80 Del. Laws ch. 153 (2015) (amending 12 Del. C. § 3333).
Nothing about the amendment overruled Riggs. Section 3333(a) codified the
common law principle that a fiduciary can retain counsel and invoke the attorney-client
privilege for the advice it obtains. But that is only the first step of the privilege analysis.
The next question is whether an exception to privilege applies, either as set forth in
Delaware Rule of Evidence 502(d) or under the common law. Section 3333(a) does not
address exceptions to the attorney-client privilege. If J.P. Morgan’s reading of the statute
were correct, then Section 3333(a) would not only have overruled Riggs, but also have
eliminated the crime-fraud exception, the joint-client exception, the at-issue exception, and
all the rest. That is not a reasonable reading of the statute.
Sections 3333(a) and 3333(b) instead address two narrower issues: (i) the degree to
which the source of payment affects the trustee’s ability to maintain privilege and (ii) the
extent to which a claim must be pending or threatened for the trustee to invoke privilege.
The Riggs court viewed the source of payment as strong evidence of counsel’s role. See
355 A.2d at 711. Subsequent authorities have de-emphasized the source of payment. See
17
Restatement (Third) of Trusts § 82 cmt. f (Am. Law Inst. 2007) (noting that source of
payment “is not determinative”). Consistent with that trend, Sections 3333(a) and 3333(b)
make clear that the source of payment is not dispositive.
When applying the fiduciary exception, the Riggs court also noted the absence of
any claim “then pending or threatened” against the trustee. 355 A.2d at 711. Section
3333(a) states that a trustee can retain counsel “whether or not related to any claim that has
been or might be asserted against the fiduciary,” and Section 3333(b) confirms that the
fiduciary may retain counsel in connection with any matter “that is or that might reasonably
be believed to be one that will become the subject of or related to a claim . . . .” Sections
3333(a) and 3333(b) thus make clear that a claim need not have been filed or explicitly
threatened for the trustee to maintain privilege.
The plain language of Sections 3333(a) and 3333(b) thus does not overrule Riggs.
The legislative history also does not support such a radical interpretation.
The most prevalent source of legislative history for a Delaware statute is the
synopsis, which the Delaware Supreme Court has held is “a proper source for ascertaining
legislative intent.” Bd. of Adjustment of Sussex Cty. v. Verleysen, 36 A.3d 326, 332 (Del.
2012). The synopsis for the 2015 amendment states that it
revises section 3333 to (1) provide that the attorney-client privilege is
deemed to protect communications between a fiduciary and counsel in cases
where counsel is retained by the fiduciary and paid by the fiduciary from the
fiduciary’s own funds, and (2) clarify that the fiduciary exception to the
attorney-client privilege does not apply in cases where a fiduciary retains
counsel in connection with a claim against the fiduciary or in connection with
a matter that might reasonably be believed to be a matter that will lead to
such a claim, even if the privileged communications have the effect of
guiding the fiduciary in the performance of fiduciary duties.
18
Del. H.B. 164 syn., 148th Gen. Assem. (2015). Nothing in the synopsis speaks of overruling
Riggs or modifying a long-standing equitable rule.
Rather than overruling Riggs and the fiduciary exception, the synopsis recognizes
that the fiduciary exception lives on. Item (2) in the synopsis notes that the amendments
“clarify” when the fiduciary exception “does not apply.” Id. (emphasis added). The verb
“clarify” means to make something clearer or easier to understand.5 It contemplates
preserving the existing rule and confirming its operation. It does not contemplate changing
the rule, much less eliminating it.
Overruling Riggs by statute would have been a serious matter. In addition to
overruling an established line of Delaware authority, the amendment would have rejected
an aspect of Delaware Rule of Evidence 502, which cites Riggs favorably as a case
“illustrating the law covered by this [rule].” D.R.E. 502, cmt.; see Calloway, 1996 WL
5See Webster’s II New College Dictionary 206 (1999) (“1. To make clear or easier
to understand: ELUCIDATE.”); Webster’s Ninth New Collegiate Dictionary 245 (1990) (“2 :
to free of confusion 3 : to make understandable”); Webster’s New World Dictionary 262
(2d coll. ed. 1986) (“2. to make or become easier to understand”); Webster’s Third New
International Dictionary 415 (1976) (“3a: to free (the mind or understanding) of confusion,
doubt, or uncertainty . . . b: to explain clearly : make understandable : REVEAL, INTERPRET
. . . 4: to make less complex or less ambiguous”); Clarify, Cambridge Dictionary,
https://dictionary.cambridge.org/dictionary/english/clarify (last visited Dec. 3, 2019) (“to
make something clear or easier to understand by giving more details or a simpler
explanation”); Clarify, Dictionary.com, https://www.dictionary.com/browse/clarify (last
visited Dec. 3, 2019) (“1 to make (an idea, statement, etc.) clear or intelligible; to free from
ambiguity. . . . 3 to free (the mind, intelligence, etc.) from confusion; revive”); Clarify,
Merriam-Webster, https://www.merriam-webster.com/dictionary/clarify (last visited Dec.
3, 2019) (“1: to make understandable . . . 2: to free of confusion”).
19
361504, at *1. That step would have had knock-on effects outside of Delaware, because
other states regard Riggs as the majority rule,6 and the federal courts apply it as “[t]he
leading American case on the fiduciary exception.” United States v. Jicarilla Apache
Nation, 564 U.S. 162, 171 (2011). When a statutory amendment intends to overrule a
significant Delaware decision, the synopsis often mentions the decision by name. See, e.g.,
Del. H.B. 19 syn., 145th Gen. Assem. syn. (2009) (amending 8 Del. C. § 145 to “adopt[] a
default rule different than the approach articulated in Schoon v. Troy Corp., 948 A.2d 1157,
1165–66 (Del. Ch. 2008)”). If the General Assembly had intended to abrogate Riggs,
doubtless the synopsis would have said so.
III. CONCLUSION
The motion to compel is granted. J.P. Morgan shall produce in unredacted form the
redacted emails submitted in opposition to the motion and previously reviewed in camera.
J.P. Morgan shall produce all documents on its log dated before November 1, 2016, except
for the thirteen items that refer to “potential litigation with Respondent Hadley Fisher.”
J.P. Morgan shall submit those items for in camera review. Compliance shall take place
within five days.
6
See, e.g., In re Kipnis Section 3.4 Tr., 329 P.3d 1055, 1062 (Ariz. Ct. App. 2014);
Hoopes v. Carota, 543 N.E.2d 73, 74 (N.Y. 1989). See generally Patricia C. Kussmann,
Construction and Application of the Fiduciary Duty Exception to Attorney-Client
Privilege, 47 A.L.R. 6th 255 (2009 & Supp.). The leading decision that declined to follow
Riggs recognized that it was adopting a minority view and that “[i]n most of the other
jurisdictions in which this question has arisen, courts have given the trustee’s reporting
duties precedence over the attorney-client privilege.” Wells Fargo Bank v. Superior Court,
990 P.2d 591, 595 (Cal. 2000).
20