Commercial Litigation and Arbitration

Reliance on Fact of Consultation with Counsel ≠ Reliance on Advice of Counsel Nor Effect Waiver — Beneficiary May Not Pierce Privilege of Indenture Trustee under Fiduciary Exception (Garner v. Wolfinbarger) for Substantive Advice

From CFIP Master Fund Ltd v. Citibank N.A., 2010 U.S. Dist. LEXIS 97771 (S.D.N.Y. Sept. 18, 2010):

[Footnote 27] Contrary to the Fund's contentions, U.S. Bank is not asserting an "advice of counsel" defense, which would require the waiver of attorney-client privilege, by referring to the fact of its communication with counsel in the context of demonstrating its good faith. U.S. Bank has specifically disclaimed reliance on a provision of the BTA [Base Trust Agreement] that allows an advice of counsel defense, see BTA § 8.2(a)(ii). The focus of U.S. Bank's "good faith" defense is on the nature of the inquiry that U.S. Bank undertook, not the substance of the legal advice that was eventually provided. ***

[Footnote 29] By "bottom-line" order January 18, 2010, the Court denied the Fund's application to compel U.S. Bank to produce otherwise privileged documents based on the so-called "fiduciary exception" and indicated that the reasons for that ruling would follow. These reasons are manifest in the preceding discussion of the extent of U.S. Bank's fiduciary duties as Trustee, which the Court concludes are limited and ministerial in nature. Assuming arguendo that the fiduciary exception applies to privilege assertions by indenture trustees relating to allegations that the trustee breached its fiduciary duties, see, e.g., AMBAC Indem. Corp. v. Bankers Trust Co., 151 Misc.2d 334, 340 (N.Y. Sup. Ct. 1991), the Court finds that this exception does not apply to the particular documents that the Trustee here asserts are privileged. These documents relate to the Trustee's request for legal advice regarding the Lyondell and Charter/Idearc substitutions and valuation notices, and accordingly, implicate the substantive terms of CGML's obligations under the Confirmation rather than the Trustee's limited fiduciary duties to avoid conflicts of interest. Cf. id. (applying fiduciary exception where plaintiff charged that indenture trustee "invaded trust accounts and wrongfully appropriated to its own use funds from an account designated for bond redemption and . . . Trust charged excessive fees and paid them to itself in advance of payment of superior obligations"). In addition, all communications included in the privilege log occurred after March 5, 2009, i.e., well after the Fund objected to CGML's January 28 substitution notice with respect to the Lyondell Reference Obligation. It is clear from the Court's review of these communications that they were all made in anticipation of litigation, a fact that in itself renders the fiduciary exception inapplicable. See, e.g., Strougo v. BEA Assocs., 199 F.R.D. 515, 524 (S.D.N.Y. 2001) ("while the [fiduciary] exception permits disclosure of communications relating to the conduct of an alleged action in proper circumstances, it does not permit disclosure of communications regarding the defense of a lawsuit"). For these reasons, the Court denied the Fund's application to compel these otherwise privileged communications.

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