In Re: Estate of McAleer Apl of: W. McAleer ( 2021 )

[J-18-2020][Lead Opinion - Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: THE ESTATE OF WILLIAM K. : No. 6 WAP 2019
MCALEER, DECEASED :
: Appeal from the Order of the Superior
: Court entered 8/9/18 at No. 932 WDA
APPEAL OF: WILLIAM MCALEER : 2017, quashing the appeal from the
: order of the Court of Common Pleas of
: Allegheny County entered May 30,
: 2017 at No. 0334 of 2014
:
: ARGUED: May 27, 2020
CONCURRING OPINION AND OPINION SUPPORTING REVERSAL
JUSTICE SAYLOR DECIDED: April 7, 2021
I join Parts I and II(A) of the main opinion, which concerns the jurisdictional
question.
Regarding the adoption of the fiduciary exception, I agree with Appellant and his
amicus that policy-based exceptions to the attorney-client privilege codified at Section
5928 of the Judicial Code are better considered by the policy-making branch of
government. Accord Crimson Trace Corp. v. Davis Wright Tremane LLP, 326 P.3d 1181,
1192-93 (Or. 2014). In this respect, I submit that the General Assembly has superior
tools to gather empirical information and assess advantages and disadvantages on a
developed legislative record. See generally Seebold v. Prison Health Servs., Inc., 618
Pa. 632, 652–54 & n.19, 57 A.3d 1232, 1245–46 & n.19 (2012). This task involves
addressing the inherent tension between beneficiaries’ right to information about trust
activities and the essential protections afforded by the attorney-client privilege in
connection with prudent trust administration.1
I am also concerned that the opinion supporting affirmance under-weights the
potential that trustees, in light of the fiduciary exception, may not seek the advice of
counsel or may withhold sensitive information material to the rendition of necessary legal
advice. See St. Simons Waterfront LLC v. Hunter MacLean Exley & Dunn, P.C., 746
S.E.2d 98, 108 (Ga. 2013); Huie v. DeShazo, 922 S.W.2d 920, 923-24 (Tex. 1996).
Respectfully, moreover, I find the approach of admonishing trustees that they may
personally shoulder the expense for legal services associated with their official
responsibilities to be wholly impracticable, particularly relative to complex matters in
which the cost is prohibitive.
1 Notably, as explained by amicus, The Pennsylvania Bankers Association, a number of
state legislatures have explicitly declined to adopt a fiduciary exception. See Brief for
Amicus Pa. Bankers Ass’n at 20-21.
[J-18-2020][Lead Opinion – Wecht, J.] - 2