Who Does the Trustee's Attorney Answer To?

Many prospective clients complain about the Trustee’s attorney. Their feeling of frustration generally stems from the concept that the Trustee is supposed to be acting in the best interest of the beneficiaries, therefore the Trustee’s attorney should be as well. However, that is not the case. Attorneys have a duty of loyalty to their clients and to their clients alone. Because of this, if the attorney put the interests of the beneficiaries over that of the Trustee, they would be violating their duties and be subject to disciplinary actions by the California State Bar.

However, it is settled California Law that the attorney for the Trustee (meaning the one that the Trustee uses trust funds to pay for) does not represent the individual person, but instead the office of Trustee. While this may seem like a limited distinction, it can actually have far reaching consequences.

For example, In Moeller v. Superior Court (1997) 16 Cal.4th 1124 the court found that the attorney-client privilege, one of the most important aspects of the attorney-client relationship passes on to the Successor Trustee. Meaning, that if the Trustee performs some self-dealing activity and tells the attorney that he was doing it for the benefit of himself and not the beneficiaries, it is likely that the Successor Trustee can waive the attorney-client privilege regarding that communication (assuming of course that the Trustee was removed).

Further, as a general rule of thumb only the attorney’s client can sue them for malpractice. However, the California Supreme Court in Borissoff v. Taylor (2004) 93 P.3d 337 stated that because the office of Trustee is the client, a Successor Trustee can sue the former Trustee’s attorney for malpractice.