As difficult as it can be to properly identify the
"client" inside a corporation, within a corporate family,
and when corporate lawyers deal with employees, there is another
counterintuitive possibility — that the corporation's
shareholders may be the real "client."
In Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir.
1970), the Fifth Circuit recognized that in certain circumstances
shareholders pursuing a derivative case could access communications
between corporate executives and the corporation's lawyers.
That doctrine eventually developed into what is called "the
fiduciary exception," when combined with an old English trust
principle recognizing trusts' beneficiaries as the real
"clients" (and thus entitled to communications between
the trustee and her lawyer). Since Garner, some courts
have applied the same principle to shareholders' non-derivative
claims against corporations, while other courts have questioned
that expansion. In Wal‑Mart Stores, Inc. v.
