Maryland fiduciaries keep the privilege even when the estate pays the lawyer.

As of October 1, 2026, Maryland has a new statute stating that communications between a fiduciary and the fiduciary's lawyer remain privileged even when a trust or estate pays the lawyer's invoice.

The statute is Estates and Trusts Article § 15-117, enacted through Senate Bill 131 as Chapter 500 of 2026 and House Bill 65 as Chapter 501. Both bills were approved by the governor on May 12, 2026. The new section addresses attorney-client privilege in fiduciary relationships.

Maryland's new rule applies when fiduciary funds pay counsel

Section 15-117(b)(1) provides that, unless the client waives the privilege, a communication between an attorney and a client acting as a fiduciary remains subject to the attorney-client privilege even if fiduciary funds are used to compensate the attorney for legal services rendered to the client.

That covers the basic payment question directly. Paying a trustee's lawyer from trust funds does not, by itself, supply an argument that the trustee's communications with counsel lost privilege. The same applies when an estate pays counsel for legal services rendered to a personal representative or another fiduciary client.

Section 15-117(b)(2) addresses the relationship between the fiduciary and the beneficiary. The existence of that relationship does not constitute or create a waiver of the privilege for communications between the attorney and the fiduciary.

Before publication, the Archivar editorial desk read the signed Chapter 500 text beside the Department of Legislative Services' Third Reader fiscal note. The new section is short. It has one definition subsection and one two-part substantive subsection. "Unless waived by the client" is its only stated qualifier, and the section lists no other exceptions. The desk also confirmed that the House cross-file, Chapter 501, carries the same title and the same October 1, 2026 effective date.

Power-of-attorney agents now fall within the definition

Section 15-117(a) provides that "fiduciary" includes an agent as defined in Estates and Trusts Article § 17-101. That is an agent acting under a power of attorney.

The Department of Legislative Services fiscal and policy note states that existing Title 15 definitions include a trustee acting under a deed, will, declaration of trust, or similar instrument, as well as a court-appointed trustee. They also include a receiver, custodian, committee or guardian of the property of a minor or disabled person, executor, administrator, and personal representative.

The new section adds the person acting under a power of attorney to that group. Banks in Maryland routinely act as trustees, personal representatives, custodians, and agents, according to testimony from the Maryland Bankers Association in support of the legislation.

The fiscal note says the bill does not directly affect state or local finances. It describes the small business effect as minimal.

The statute answers a fiduciary-exception dispute

Some jurisdictions recognize a fiduciary exception to attorney-client privilege. Under that approach, trust beneficiaries may reach communications between a trustee and the trustee's lawyer concerning trust administration.

The leading U.S. case is Riggs National Bank of Washington, D.C. v. Zimmer, 355 A.2d 709 (Del. Ch. 1976). The Delaware Court of Chancery treated the beneficiaries as the "real clients" for advice on trust administration and held those communications discoverable.

In United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011), the U.S. Supreme Court described the exception's English common-law roots. At common law, beneficiaries could compel production of a trustee's administration advice because the advice was sought for their benefit and paid for at their expense. The Court held that the exception did not apply to the general trust relationship between the United States and Indian tribes.

The Maryland State Bar Association's Estate and Trust Law Section said in written testimony dated January 20, 2026, that a minority of jurisdictions recognize a fiduciary exception. Several states, it said, have enacted statutes declaring that no such exception exists.

Senator Chris West's January 22, 2026, testimony described Maryland's prior position as a grey area. Maryland recognizes some limited exceptions to the privilege, he said, but a fiduciary exception is not among them. He cited Trasatti v. Trasatti, an unreported 2018 Maryland Court of Special Appeals opinion, while also stating that Maryland decisions had not expressly established that no fiduciary exception exists.

West said parties often raise the question in litigation, increasing cost and delaying adjudication. Section 15-117 supplies statutory text addressing both the source of payment and the fiduciary-beneficiary relationship.

Two identical bills became law after a prior effort stalled

Senate Bill 131 passed the Senate 44-0 on February 26, 2026, and the House 119-0 on April 3, 2026. House Bill 65 passed the House 120-0 and the Senate 45-0. The measures were identical cross-filed bills.

The 2026 legislation followed an earlier effort. Senate Bill 131 was identical to Senate Bill 135 from 2025. That bill passed the Senate 44-0 but was never taken up by the House, according to West's testimony. The fiscal note also identifies House Bill 310 of 2025 as similar prior legislation.

The Maryland State Bar Association's Estate and Trust Law Section and the Maryland Bankers Association testified in support of Senate Bill 131. The act's stated purpose was to clarify that a communication between an attorney and a client acting as a fiduciary is privileged even when fiduciary funds pay the attorney.

Section 2 of Chapter 500 states the October 1, 2026 effective date. The chapter contains no separate provision concerning pending cases or communications made before that date.

The new statute changes privilege questions, not confidentiality rules

Maryland's privilege statute is Courts and Judicial Proceedings Article § 9-108. It provides that a person may not be compelled to testify in violation of the attorney-client privilege.

The new section speaks to that evidentiary privilege. In Newman v. State, 384 Md. 285 (2004), the Court of Appeals of Maryland (now the Supreme Court of Maryland) distinguished the privilege from a lawyer's broader ethical duty of confidentiality under the Maryland Attorneys' Rules of Professional Conduct. Section 15-117 does not address that separate duty.

The statute also does not list or modify any other exception to the privilege. Its only stated qualifier is waiver by the client. The fiduciary-beneficiary relationship is not a waiver under the statute, and payment from fiduciary funds is not, by itself, a loss of privilege.

For trust and estate litigation, discovery disputes that previously turned on the fiduciary-exception argument now have statutory language to cite. Engagement letters, firm templates, and practice materials prepared before October 1, 2026, describe the law before § 15-117 existed. The chapter's text supplies the effective date but no separate rule for pending matters.

Archivar, which publishes The Docket, is an operating system for law firms that answers every call 24/7 in English and Spanish, runs intake, manages matters, and remembers everything the firm does. In fiduciary work, the matter record of who the client is, whether a trustee, personal representative, or agent acting in that capacity, and what was communicated with counsel is the record a privilege question turns on.

Since October 1, 2026, paying a Maryland fiduciary's lawyer from trust or estate funds does not, by itself, cost the privilege.

The fiduciary-beneficiary relationship is not a waiver.

The client can still waive, and the separate duty of confidentiality sits outside the new section.