ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 1.6
Confidentiality of Information.
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.
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ACTEC COMMENTARY ON MRPC 1.6
Joint and Separate Clients. Subject to the requirements of MRPCs 1.6 (Confidentiality of Information), 1.7 (Conflict of Interest: General Rule) and 2.2 (Intermediary), a lawyer may represent more than one client with related, but not necessarily identical, interests (e.g., several members of the same family, more than one investor in a business enterprise). The fact that the goals of the clients are not entirely consistent does not necessarily constitute a conflict that precludes the same lawyer from representing them. See ACTEC Commentary on MRPC 1.7(Conflict of Interest: General Rule). Thus, the same lawyer may represent a husband and wife, or parent and child, whose dispositive plans are not entirely the same. When the lawyer is first consulted by the multiple potential clients the lawyer should review with them the terms upon which the lawyer will undertake the representation, including the extent to which information will be shared among them. The principal terms should, but need not, be reflected in a writing a copy of which is given to each client. See ACTEC Commentary on MRPC 1.2 (Scope of Representation). The lawyer may wish to consider holding a separate interview with each prospective client, which may allow the clients to be more candid and, perhaps, reveal conflicts of interest.
Joint Representation Presumed. Unless otherwise agreed, a lawyer who represents multiple clients with regard to related legal matters is presumed to represent them jointly. Such a representation usually implies that information will be shared by the clients with respect to the subject of the representation but confidentiality will be maintained as to all other matters. Confidentiality must also be maintained with respect to information that is not relevant to the representation. As indicated below, some experienced estate planners undertake to represent multiple parties with respect to related matters as separate clients among whom confidential information will not be shared.
Multiple Separate Clients. There does not appear to be any authority that expressly authorizes a lawyer to represent multiple clients separately with respect to related legal matters. However, with full disclosure and the consent of the clients some experienced estate planners regularly undertake to represent husbands and wives as separate clients. Similarly, but with less frequency, some estate planners also represent a parent and child or other multiple clients as separate clients. A lawyer who is asked to provide separate representation to multiple clients should do so with great care because of the stress it necessarily places on the lawyer's duties of impartiality and loyalty and the extent to which it may limit the lawyer's ability to advise each of the clients adequately. For example, without disclosing a confidence of one spouse the lawyer may be unable adequately to represent the other spouse. However, within the limits of MRPC 1.7 (Conflict of Interest: General Rule), it may be possible to provide separate representation regarding related matters to adequately informed clients who give their consent to the terms of the representation. It is unclear whether separate representation could be provided within the scope of MRPC 2.2 (Intermediary). The lawyer's disclosures to, and the agreement of, clients who wish to be separately represented should, but need not, be reflected in a contemporaneous writing. Unless required by local law such a writing need not be signed by the clients.
Confidences Imparted by One Joint Client. A lawyer who receives information from one joint client (the "communicating client") that the client does not wish to be shared with the other joint client (the "other client") is confronted with a situation that may threaten the lawyer's ability to continue to represent one or both of the clients. As soon as practicable the lawyer should consider the relevance and significance of the information and decide upon the appropriate manner in which to proceed. The potential courses of action include, inter alia, (1) taking no action with respect to communications regarding irrelevant (or trivial) matters; (2) encouraging the communicating client to provide the information to the other client or to allow the lawyer to do so; and, (3) withdrawing from the representation if the communication reflects serious adversity between the parties. For example, a lawyer who represents a husband and wife in estate planning matters might conclude that information imparted by one of the spouses regarding a past act of marital infidelity need not be communicated to the other spouse. On the other hand, the lawyer might conclude that he or she is required to take some action with respect to a confidential communication that concerns a matter that threatens the interests of the other client or could impair the lawyer's ability to represent the other client effectively (e.g., "After she signs the trust agreement I intend to leave her"; or, "All of the insurance policies on my life that name her beneficiary have lapsed"). Without the informed consent of the other client the lawyer should not take any action on behalf of the communicating client, such as drafting a codicil or a new will, that might damage the other client's economic interests or otherwise violate the lawyer's duty of loyalty to the other client.
In order to minimize the risk of harm to the clients' relationship and, possibly, to retain the lawyer's ability to represent both of them, the lawyer may properly urge the communicating client himself or herself to impart the confidential information directly to the other client. See ACTEC Commentary on MRPC 2.1 (Advisor). In doing so the lawyer may properly remind the communicating client of the explicit or implicit understanding that relevant information would be shared and of the lawyer's obligation to share the information with the other client. The lawyer may also point out the possible legal consequences of not disclosing the confidence to the other client, including the possibility that the validity of actions previously taken or planned by one or both of the clients may be jeopardized. In addition, the lawyer may mention that the failure to communicate the information to the other client may result in a disciplinary or malpractice action against the lawyer.
If the communicating client continues to oppose disclosing the confidence to the other client, the lawyer faces an extremely difficult situation with respect to which there is often no clearly proper course of action. In such cases the lawyer should have a reasonable degree of discretion in determining how to respond to any particular case. In fashioning a response the lawyer should consider his or her duties of impartiality and loyalty to the clients; any express or implied agreement among the lawyer and the joint clients that information communicated by either client to the lawyer or otherwise obtained by the lawyer regarding the subject of the representation would be shared with the other client; the reasonable expectations of the clients; and the nature of the confidence and the harm that may result if the confidence is, or is not, disclosed. In some instances the lawyer must also consider whether the situation involves such adversity that the lawyer can no longer effectively represent both clients and is required to withdraw from representing one or both of them. See ACTEC Commentary on MRPC 1.7 (Conflict of Interest: General Rule). A letter of withdrawal that is sent to the other client may arouse the other client's suspicions to the point that the communicating client or the lawyer may ultimately be required to disclose the information.
Separate Representation of Related Clients In Unrelated Matters. The representation by one lawyer of related clients with regard to unrelated matters does not necessarily involve any problems of confidentiality or conflicts. Thus, a lawyer is generally free to represent a parent in connection with the purchase of a condominium and a child regarding an employment agreement or an adoption. Unless otherwise agreed, the lawyer must maintain the confidentiality of information obtained from each separate client and be alert to conflicts of interest that may develop. The separate representation of multiple clients with respect to related matters, discussed above, involves different considerations.
Legal Assistants, Secretaries and Office Staff. In the absence of express contrary instructions by a client, the lawyer may share confidential information with members of the lawyer's office staff to the extent reasonably necessary to the representation. As indicated in MRPC 5.3 (Responsibilities Regarding Nonlawyer Assistants), the lawyer is required to assure that staff members respect the confidentiality of clients' affairs. The lawyer should "give such assistants appropriate instructions concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to the representation of the client, and should be responsible for their work product." Comment to MRPC 5.3 (Responsibilities Regarding Nonlawyer Assistants).
Consultants and Associated Counsel. The lawyer should obtain a client's consent to the disclosure of confidential information to other professionals. However, the lawyer may be impliedly authorized to disclose confidential information to other professionals and business consultants to the extent appropriate to the representation. Thus, the client may reasonably anticipate that a lawyer who is preparing an irrevocable life insurance trust for the client will discuss the client's affairs with the client's insurance advisor. Additionally, in order to satisfy the lawyer's duty of competence, the lawyer may, without the express consent of the client, consult with another professional regarding draft documents or the tax consequences of particular actions, provided that the client's identity and other confidential information is not disclosed. In such a case the lawyer is responsible for payment of the consultant's fee. As indicated in the ACTEC Commentary on MRPC 1.1 (Competence), with the client's consent the lawyer may associate other professionals to assist in the representation.
Implied Authorization to Disclose. The lawyer is also impliedly authorized to disclose otherwise confidential information to the courts, administrative agencies, and other individuals and organizations as the lawyer believes is reasonably required by the representation. A lawyer is impliedly authorized to make arrangements, in case of the lawyer's death or disability, for another lawyer to review the files of his or her clients. As stated in ABA Formal Opinion 92-369 (1992), "[r]easonable clients would likely not object to, but rather approve of, efforts to ensure that their interests are safeguarded."
Obligation After Death of Client. In general, the lawyer's duty of confidentiality continues after the death of a client. Accordingly, a lawyer ordinarily should not disclose confidential information following a client's death. However, if consent is given by the client's personal representative, or if the decedent had expressly or impliedly authorized disclosure, the lawyer who represented the deceased client may provide an interested party, including a potential litigant, with information regarding a deceased client's dispositive instruments and intent, including prior instruments and communications relevant thereto. A lawyer may be impliedly authorized to make appropriate disclosure of client confidential information that would promote the client's estate plan, forestall litigation, preserve assets, and further family understanding of the decedent's intention. Disclosures should ordinarily be limited to information that the lawyer would be required to reveal as a witness.
Disclosures by Lawyer for Fiduciary. The duties of the lawyer for a fiduciary are affected by the nature of the client and the objectives of the representation. See ACTEC Commentary on MRPC 1.2 (Scope of Representation). Special care must be exercised by the lawyer if the lawyer represents the fiduciary generally and also represents one or more of the beneficiaries of the fiduciary estate.
As indicated in the ACTEC Commentary on MRPC 1.2 (Scope of Representation), the lawyer and the fiduciary may agree between themselves that the lawyer may disclose to the beneficiaries or to an appropriate court any action or inaction on the part of the fiduciary that might constitute a breach of trust. Whether or not the lawyer and fiduciary enter into such an agreement, the lawyer for the fiduciary ordinarily owes some duties (largely restrictive in nature) to the beneficiaries of the fiduciary estate. See ACTEC Commentary on MRPC 1.2 (Scope of Representation). The existence of those duties alone may qualify the lawyer's duty of confidentiality with respect to the fiduciary. Moreover, the fiduciary's retention of the lawyer to represent the fiduciary generally in the administration of the fiduciary estate may impliedly authorize the lawyer to make disclosures in order to protect the interests of the beneficiaries. In addition, the lawyer's duties to the court may require the lawyer for a court-appointed fiduciary to disclose to the court certain acts of misconduct committed by the fiduciary. See MRPC 3.3(b) (Candor toward the Tribunal), which requires disclosure to the court "even if compliance requires disclosure of information otherwise protected by Rule 1.6." In any event, the lawyer may not knowingly provide the beneficiaries or the court with false or misleading information. See MRPCs 4.1-4.3 (Truthfulness in Statements to Others; Communications with Person Represented by Counsel; Dealing with Unrepresented Person).
Example 1.6-1. Lawyer (L) was retained by Trustee (T) to advise T regarding administration of the trust. T consulted L regarding the consequences of investing trust funds in commodity futures. L advised T that neither the governing instrument nor local law allowed the trustee to invest in commodity futures. T invested trust funds in wheat futures contrary to L's advice. The trust suffered a substantial loss on the investments. Unless explicitly or implicitly required to do so by the terms of the representation, L was not required to monitor the investments made by T or otherwise to investigate the propriety of the investments. The following alternatives extend the subject of this example:
(1) L, in preparing the annual accounting for the trust, discovered T's investment in wheat futures, and the resulting loss. T asked L to prepare the accounting in a way that disguised the investment and the loss. L may not participate in a transaction that misleads the court or the beneficiaries with respect to the administration of the trust--which is the subject of the representation. L should attempt to persuade T that the accounting must properly reflect the investment and otherwise be accurate. If T refuses to accept L's advice, L must not prepare an accounting that L knows to be false or misleading. If T does not properly disclose the investment to the beneficiaries, in some states L may be required to disclose the investment to them. In states that neither require nor permit such disclosures the lawyer should resign from representing T. See ACTEC Commentary on MRPC 1.6 (Confidentiality of Information).
(2) L first learned of T's investment in commodity futures when L reviewed trust records in connection with preparation of the trust accounting for the year. The accounting prepared by L properly disclosed the investment, was signed by T, and was distributed to the beneficiaries. L's investment advice to T was proper. L was not obligated to determine whether or not T made investments contrary to L's advice. L may not give legal advice to the beneficiaries but may recommend that they obtain independent counsel. In jurisdictions that permit the lawyer for a fiduciary to make disclosures to the beneficiaries regarding the fiduciary's possible breaches of trust, L should consider whether to make such a disclosure.
Conditioning Appointment of Fiduciary on Permitting Disclosure. A lawyer may properly assist a client by preparing a will, trust, or other document that conditions the appointment of a fiduciary upon the fiduciary's agreement that the lawyer retained by the fiduciary to represent the fiduciary with respect to the fiduciary estate may disclose to the beneficiaries or an appropriate court any actions of the fiduciary that might constitute a breach of trust. Such a conditional appointment of a fiduciary should not increase the lawyer's duties other than the possible duty of disclosing misconduct to the beneficiaries. If the lawyer retained pursuant to such an appointment learns of acts or omissions by the fiduciary that may, or do, constitute a breach of trust, the lawyer should call them to the attention of the fiduciary and recommend that remedial action be taken. Depending upon the circumstances, including the nature of the actual or apparent breaches, their gravity, the potential that the acts or omissions might continue or be repeated, and the actual or potential injury suffered by the fiduciary estate or the beneficiaries, the lawyer for the fiduciary whose appointment has been so conditioned may properly disclose to the designated persons and to the court any actions of the fiduciary that may constitute breaches of trust.
Apparently Disabled Client. As indicated in the ACTEC Commentary on MRPC 1.14 (Client under a Disability), the lawyer for a client who is, or reasonably appears to be, disabled is impliedly authorized to take reasonable steps to protect the interests of the client, including the disclosure, where appropriate and not prohibited by state law or ethical rule, of otherwise confidential information. See ABA Inf. Op. 89-1530 (1989) and ALI, Restatement, Law Governing Lawyers, ' 113 (Proposed Final Draft No. 1, 1996). In such cases the lawyer may either initiate a guardianship or other protective proceeding or consult with diagnosticians and others regarding the client's condition, or both.
Prospective Clients. A lawyer owes some duties to prospective clients including a general obligation to protect the confidentiality of information obtained during an initial interview. See ALI, Restatement, Law Governing Lawyers '' 111-112 (Proposed Final Draft No. 1, 1996). If the initial conference does not result in the lawyer being retained as counsel, the lawyer's receipt of information imparted at an initial conference may, or may not, disqualify the lawyer from representing a party whose interests are adverse to the prospective client.
ANNOTATIONS
(Refer to Caveat)
Joint and Separate Clients:
Cases:
Florida:
Cone v. Culverhouse, 687 So. 2d 888 (Fla. App. 1997). In this case the court discussed the "common interest" exception to the lawyer-client communications privilege. Under state statute there is no lawyer-client communication privilege where the communication is relevant to a matter of common interest between two or more clients, such as a husband and wife, with regard to their estate planning, if the communication was made by either of them to the lawyer whom they retained or consulted in common.
New Jersey:
A v. B v. Hill Wallack, 726 A.2d 924 (N.J. 1999). Construing New Jersey's broad client-fraud exception to the state's version of MRPC 1.6, the Supreme Court of New Jersey held that a law firm that was jointly representing a husband and wife in the planning of their estates was entitled to disclose to the wife the existence (but not the identity) of husband's child born out of wedlock. The court reasoned that the husband's deliberate failure to mention the existence of this child when discussing his estate plan with the law firm constituted a fraud on the wife which the firm was permitted to rectify under MRPC 1.6(c). Interestingly, the law firm learned about the child born out of wedlock not from the husband but from the child's mother who had retained the law firm. The court also based its decision permitting disclosure on the existence of a written agreement between the husband and wife, on the one hand, and the law firm, on the other, waiving any potential conflicts of interest with the court suggesting that the letter reflected the couple's implied intent to share all material information with each other in the course of the estate planning. The court cites extensively and approvingly to the ACTEC Commentaries and to the Report of the ABA Special Probate and Trust Division Study Committee on Professional Responsibility discussed immediately below.
Ethics Opinions:
ABA, Special Probate and Trust Division Study Committee on Professional Responsibility, Report: Comments and Recommendations on the Lawyer's Duties in Representing Husband and Wife,; Preparation of Wills and Trusts that Name Drafting Lawyer as Fiduciary; and Counseling the Fiduciary. The representation of a husband and wife is one of the subjects that has been studied by the ABA Special Probate and Trust Division Study Committee on Professional Responsibility ("the ABA Committee"). A published summary of the ABA Committee's Report on the representation of both spouses discusses the Report's two main recommendations: (1) That in the absence of a contrary agreement the husband and wife are joint clients, which involves the application of implicit disclosure rules; and (2) That the lawyer "may define and limit his or her duty to require immediate disclosure and withdrawal and may agree that in some cases the lawyer will determine neither to disclose nor to withdraw, despite the existence of an adversity." Moore & Hilker, Representing Both Spouses: The New Section Recommendations, 7 Prob. & Prop. 26, 30 (July/Aug. 1993). The ABA Committee "recommends the practice of having an agreement, preferably in writing, that sets out the ground rules of representation." Id. at 31. Although the ABA Committee recognizes that a lawyer may represent a husband and wife separately, agreeing to maintain the confidences of each, it recommends that "such a representation [should] be undertaken only by those who believe they can represent independently each spouse despite the knowledge of the other spouse's plan." Id. at 30.
According to the Report, "[t]he greatest threat to a joint representation is the confidence blurted to the lawyer by one spouse that is clearly intended to be kept secret from the other spouse in a joint representation." Id. at 29. Reflecting that concern, the Report states that "[r]eceipt or acceptance of confidences from either spouse is a clear threat to the lawyer's independent judgment." Id. at 29.
If a confidence is communicated by one spouse, the Report suggests that the lawyer must determine "how best to handle the situation between two spouses at the time the confidence is imparted." Id. at 29. According to the Report the lawyer must "inquire into the nature of the confidence to permit the lawyer to determine whether the couple's difference that caused the information to be secret constitutes either a material potential for conflict or a true adversity". Id. at 28. The Report goes on to describe three broad types of confidences that may cause the lawyer to conclude that the differences between the spouses make the spouses' interests truly adverse: (1) Action-related confidences, in which the lawyer is asked to give advice or prepare documents without the knowledge of the other spouse, that would reduce or defeat the other spouse's interest in the confiding spouse's property or pass the confiding spouse's property to another person; (2) Prejudicial confidences, which seek no action by the lawyer, but nonetheless indicate a substantial potential of material harm to the interests of the other spouse; and (3) Factual confidences which indicate that the expectations of one spouse with respect to an estate plan, or the spouse's understanding of the plan, are not true. Because an unexpected letter of withdrawal may not protect a confidence from disclosure, the ABA Committee concluded that "the lawyer must balance the potential for material harm arising from an unexpected withdrawal against the potential for material harm arising from the failure to disclose the confidence to the other spouse." Id. at 30.
ALI, Restatement, Law Governing Lawyers, ' 111 (Proposed Final Draft No. 1, 1996):
Lawyer's Duty to Safeguard Confidential Client Information.
Except as provided in '' [113-116] and 117B [cited immediately below], during and following the time that a lawyer represents a client, or consults with a prospective client:
(1) The lawyer shall not use or disclose confidential client information [as defined in ' 112] about a client if there is a reasonable likelihood that doing so will adversely affect a material interest of the client or if the client has directed that the lawyer not use or disclose it; and
(2) The lawyer shall take steps reasonable under the circumstances to protect confidential client information within the meaning of ' 112 against use or disclosure by others that may adversely affect a material interest of the client.
ALI, Restatement, Law Governing Lawyers, ' 117b (Proposed Final Draft No. 1, 1996):
Using or Disclosing Information to Prevent, Rectify or Mitigate Substantial Financial Loss.
(1) A lawyer may use or disclose confidential client information when and to the extent that the lawyer reasonably believes such use or disclosure is necessary to prevent a crime or fraud, and:
(a) the crime or fraud threatens substantial financial loss to a person;
(b) the loss has not yet occurred;
(c) the lawyer's client intends to commit crime or fraud either directly or through a third person; and
(d) the client has employed or is employing the lawyer's services in committing the crime or fraud.
(2) In the situation of a loss otherwise described in Subsection (1) but that has already occurred, a lawyer may use or disclose confidential client information when and to the extent that the lawyer reasonably believes such use or disclosure is necessary to rectify or mitigate the loss.
(3) Before using or disclosing information pursuant to this Section, the lawyer must, if feasible, make a good faith effort to persuade the client either not to act or, if the client has already acted, to warn the victim to take other action to prevent, rectify or mitigate the loss and, if relevant, to advise the client of the lawyer's ability to use or disclose pursuant to this Section and the consequences thereof.
(4) A lawyer who takes action or decides not to take action permitted under this Section is not, by reason of such action or inaction alone, liable for professional discipline or liable for damages to the lawyer's client or any third person injured by the client's action, nor is such action or inaction relevant evidence of the lawyer's violation of duty to the client or third person. Similarly, it is not an affirmative defense in a fee or similar suit that the lawyer has taken action or decided not to take action permitted under this Section.
Florida:
Advisory Op. 95-4 (1997): "In a joint representation between husband and wife in estate planning, an attorney is not required to discuss issues regarding confidentiality at the outset of representation. The attorney may not reveal confidential information to the wife when the husband tells the attorney that he wishes to provide for a beneficiary that is unknown to the wife. The attorney must withdraw from the representation of both husband and wife because of the conflict presented when the attorney must maintain the husband's separate confidences regarding the joint representation."
Hawaii:
Hawaii has modified its Rule 1.6 to impose a mandatory obligation on a lawyer to reveal information "which clearly establishes a criminal or fraudulent act of the client in the furtherance of which the lawyer's services had been used, to the extent reasonably necessary to rectify the consequences of such act, where the act has resulted in substantial injury to the financial interests or property of another." In addition, a lawyer may in the lawyer's discretion reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing the proscribed criminal or fraudulent acts or to rectify the consequences of the client's proscribed criminal or fraudulent acts. Hawaii RPC 1.6(b) & (c) (amended 11/94).
Obligation Continues After Death:
Case:
United States Supreme Court:
Swidler & Berlin v. U.S., 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998):
[T]he general rule with respect to confidential communications . . . is that such communications are privileged during the testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs." [Citation omitted.] The rationale for such disclosure is that it furthers the client's intent. [Citation omitted.] Indeed, in Glover v. Patten, 165 U.S. 394, 406-408, 17 S.Ct. 411, 416, 41 L.Ed. 760 (1897), this Court, in recognizing the testamentary exception, expressly assumed that the privilege continues after the individual's death. The Court explained that testamentary disclosure was permissible because the privilege, which normally protects the client's interest, could be impliedly waived in order to fulfill the client's testamentary intent. [Citations omitted.]
Ethics Opinions:
ALI, Restatement, Law Governing Lawyers, ' 131 (Proposed Final Draft No. 1, 1996):
[Evidentiary Privilege] The attorney-client privilege does not apply to a communication when it becomes relevant to an issue between parties who claim an interest through the same deceased client, either by testate or intestate succession or by an inter vivos transaction.
Iowa:
Eth. Op. 91-24 (1991): In this opinion the Iowa Supreme Court Board of Professional Ethics and Conduct opined that an original unsigned and unexecuted will of a deceased client constituted a privileged lawyer-client communication which the lawyer could not disclose in the absence of a court order issued pursuant to evidence satisfactory to the court and directing such disclosure. The Committee stated its view that this opinion was not inconsistent with Iowa Formal Opinion 88-11 (December 1988) wherein the attorney/client communications privilege was held not to apply in certain litigation after a client's death between parties all of whom claim under the client.
Eth. Op. 98-11 (1998): The Board in this case was asked to provide an opinion on what types of matters involving his deceased clients an attorney could testify to in a deposition. The Board noted the existence of its earlier Opinions 88-11 and 91-24 (discussed above) and the recent decision of the U.S. Supreme Court in Swidler & Berlin v. U.S., supra (discussed above). Noting that the United States Supreme Court had held that the attorney-client communications privilege survives the death of the client and that a series of narrow tests must be met before an exception to the general rule that privileged communications survive the death of the testator may be applied, the Board stated, "these tests require findings of fact, which are legal questions which must be determined by a court of law and not by this Board. Upon the determination of these fact questions it may well be that ethical questions may arise but in the meantime this Board does not have jurisdiction to issue an opinion in this kind of a question."
New York:
Nassau County Op. 89-26 (1989). A lawyer who drafted a prior will for a client, now deceased, may not disclose the contents of the will except as required by law in an action involving the probate, validity, or construction of a will. The result was based on Canon 4 (Confidentiality).
Pennsylvania:
Phila. Bar Op. 91-4 (1991). A lawyer may not disclose to a client's children the contents of a deceased client's prior will: "The earlier will constitutes confidential information relating to your representation of the testator, and your duty not to reveal its contents continues even after your client's death."
Phila. Bar Op. 93-5 (1993). A lawyer represented the seller of real estate at a closing. Because the inheritance tax had not been paid the title company required that an amount sufficient to pay the tax be held in escrow by the lawyer. The lawyer has encouraged the executrix to file the inheritance tax return but she has failed to do so. Under the present circumstances Rule 1.6 prevents the lawyer from informing the title company or the other beneficiary that no inheritance tax return has been filed. Instead, the lawyer "'should seek to persuade the [executrix] to take suitable action.'"
Article:
Frankel, The Attorney-Client Privilege After the Death of the Client, 6 Geo. J. Legal Ethics 45 (1992).
Disabled Client:
Ethics Opinions:
ABA:
ABA Inf. Op. 89-1530 (1989). A lawyer has implied authority to consult diagnostician regarding the condition of a client.
Alabama:
Ala. Op. 89-77 (1987). The lawyer for a guardian who discovers embezzlement by the guardian may not disclose misconduct that is confidential information, must call on client to restore funds, and if client refuses to do so lawyer must withdraw. The lawyer may not present an account that fails to account for the embezzled funds.
California:
Cal. Formal Op. 1989-112 (1989). This opinion states that a lawyer may not take steps to protect a client that might involve disclosure of the client's condition if the client objects.
Maine:
Maine Op. 84 (1988). The lawyer for an elderly client believed to be incapable of making rational financial decisions may inform the client's son if the son has no adverse interest. Alternatively, the lawyer may seek help from the state adult guardianship service, etc.
Ohio:
Cleveland Bar Op. 86-5 (1986). A lawyer who represented a husband and wife may initiate a guardianship proceeding for the incompetent husband but may not take a position contrary to the interests of the wife. However, if interests of the husband and wife conflict, the lawyer must withdraw from representing either.
Cleveland Bar Op. 89-3 (1989). The lawyer for a disabled person has a duty to choose a course of action in accordance with the best interests of the client, which may include moving for the appointment of a guardian for purposes of a tort action, but must avoid unnecessarily revealing confidential information. The lawyer should avoid the conflict involved in representing the client and petitioning for the appointment of a guardian.
Oregon:
Or. Op. 1991-41 (1991). Without any discussion of the confidentiality issue, this opinion suggests that a lawyer who believes that a client is acting in a manner contrary to the client's interests could disclose his or her concerns to members of the client's family: "[If] Attorney expects to be able to end the inappropriate conduct simply by talking to Client's spouse or child, a more extreme course of action such as seeking the appointment of a guardian would be inappropriate." For a more complete summary of this opinion see the Annotations following the ACTEC Commentary on MRPC 1.14.
Pennsylvania:
Pa. Op. 88-72 (1988). A lawyer who believes a client is being taken advantage of by relatives may seek appointment of guardian if the lawyer believes the client is unable to act in his own interests.
Pa. Op. 90-89 (1990). A lawyer representing a client in a civil case who believes the client is incompetent should seek a continuance to investigate, discuss with a psychiatrist, and initiate a guardianship if necessary.
Virginia:
Va. Op. 932 (1987). A lawyer who is a residuary legatee and attorney-in-fact for an incompetent client may petition for appointment as guardian, provided the lawyer can exercise independent judgment despite any personal interest.
Articles:
Devine, The Ethics of Representing the Disabled Client: Does Model Rule 1.14 Adequately Resolve the Best Interests/Advocacy Dilemma?, 49 Mo. L. Rev. 493 (1984)
Donaldson, The Ethical Considerations of Representing the Elderly, 130 Tr. & Est. 18 (1991), an expanded version of an article in 39 Va. Lawyer 14 (1991)
Hazard, Triangular Lawyer Relationships: An Exploratory Analysis, 1 Geo. J. L. Ethics 15 (1987)
Disclosures by Lawyer for Fiduciary:
Cases:
Arkansas:
Estate of Torian v. Smith, 564 S.W.2d 521 (Ark. 1978). The Supreme Court of Arkansas here held that the attorney-client communications privilege did not bar testimony by the attorney for the executor of the decedent's will relating to a consultation which took place before the will was filed for probate in another state since the executor, in consulting with the attorney, was necessarily acting for both itself as executor and for the beneficiaries under the will, all of whom were therefore to be treated as joint clients.
Florida:
First Union Nat'l Bank of Florida v. Whitener, 715 So. 2d 979 (Fla. App. 1998), review denied, 727 So. 2d 915 (Fla. 1999). In this discovery dispute, a trust beneficiary who had brought a breach of fiduciary duty action against the trustee bank sought information and documents exchanged between the trustee and its attorneys. The court held that the attorney's client was the trustee and not the beneficiary. The attorney had been hired by the trustee after the beneficiary had retained counsel and was questioning the trustee's conduct. The court also found that Florida's version of the fraud exception to the attorney-client communications privilege did not apply and that the trustee's earlier voluntary production of certain letters from its attorney to the trustee did not waive the attorney-client privilege as to undisclosed documents.
Illinois:
In re Estate of Gleno, 200 N.E.2d 65, 67 (Ill. App. 1964) (no discussion of confidentiality). "We believe it was clearly the duty of the attorney . . . to bring these proceedings for removal when there existed reasonable grounds for suspicion as to the executor's management of the estate".
In re Estate of Minsky, 376 N.E.2d 647, 650 (Ill. App. 1978) (no discussion of confidentiality). "As an attorney and officer of the court, the lawyer was under an obligation to inform the court of any suspicions of fraud or wrongdoing on the part of the executor".
New York:
Hoopes v. Carota, 531 N.Y.S.2d 407 (App. Div. 1988), aff'd mem., 543 N.E.2d 73 (N.Y. 1989). In this case the court allowed the beneficiaries of a trust to discover communications between the defendant-trustee and the lawyer who advised the defendant generally with respect to administration of the trust. The opinion recognizes the distinction between a representation of the trustee qua trustee and a representation of the trustee "in an individual capacity". The Appellate Division opinion states that the lawyer-client evidentiary privilege:
[D]oes not attach at all when a trustee solicits and obtains legal advice concerning matters impacting on the interests of the beneficiaries seeking disclosure, on the ground that a fiduciary has a duty of disclosure to the beneficiaries whom he is obligated to serve as to all his actions, and cannot subordinate the interests of the beneficiaries, directly affected by the advice sought to his own private interests under the guise of privilege . . . . 531 N.Y.S.2d at 410.
Ethics Opinions:
ABA:
ABA Formal Op. 94-380 (1994). This opinion emphasizes the ABA's view of the overriding importance of MRPC 1.6, the effect of which is not diminished by the fact that the client is a fiduciary. Accordingly, in the ABA Ethics Committee's view, the lawyer for a fiduciary may not disclose breaches of duty by the fiduciary. The opinion states that disclosures of breaches of duty by the fiduciary are not impliedly authorized.
Illinois:
Ill. Op. 91-24 (1991). The lawyer retained by a guardian represents both the guardianship estate and the guardian in a representative capacity. It was assumed that the guardian did not reasonably believe that the lawyer represented her personally. Accordingly, "[t]he guardian is not represented personally by the attorney but is represented only in his capacity as guardian for closing out the guardianship estate." The lawyer's duty to the estate requires that "he take the steps necessary to protect the estate from the possibly fraudulent action of the guardian. If the attorney does not take steps to have the propriety of the taking of the money determined now, he runs the risk that both his and the guardian's actions will later be determined fraudulent".
Advisory Op. 98-07 (1998): A lawyer representing a guardian who has filed annual accountings, now known to have been false, must take appropriate remedial action to avoid assisting the guardian in concealing from the court the guardian's misappropriation of estate assets, even if the disclosure of client information otherwise protected by RPC 1.6 may be required.
Kentucky: Eth. Op. 401 (1997). In this extended opinion the Committee on Ethics of the Kentucky Bar Association first opined that a lawyer's representation of a fiduciary of a decedent's estate or trust neither expands nor limits the lawyer's obligations to the fiduciary under the MRPC. Secondly, the lawyer's representation of a fiduciary imposes on the lawyer no obligations to the beneficiaries of the decedent's trust or estate that the lawyer would not have toward other third parties. Thirdly, the Committee held that the lawyer's obligation to preserve client confidences under MRPC 1.6 is not altered by the fact that the lawyer's client is a fiduciary; and, finally, the Committee held that the lawyer for the fiduciary may also represent the beneficiaries of the decedent's trust or estate. The Committee quotes at length from the ACTEC Commentaries and describes them as "helpful" to the Committee's analysis. The Committee, however, adopts the position taken in ABA Formal Opinion 94-38 (1994) (discussed in the Annotations following the ACTEC Commentary on MRPC 1.6).
Massachusetts:
Mass. Op. 94-3 (1994). This opinion discusses the rights and duties of the lawyer for the administratrix of her husband's estate who has received a check payable to the administratrix in settlement of personal injuries to the decedent. The lawyer holding the check believes that the administratrix will use the proceeds to pay the current expenses of herself and her minor children rather than paying the lawful debts of the estate. The opinion advises that the lawyer "should in the first instance advise the administratrix as to the existence of any available bases for seeking court permission to apply the funds of the estate for that purpose [paying current expenses]. If no such alternative is available and the administratrix persists in demanding that the settlement funds be paid over to her, the lawyer should seek instructions from the Probate Court as to disposition of the funds. In seeking such instructions, the lawyer should avoid revealing client's confidences without consent, if possible, but it may be necessary to reveal some confidential information to prevent client from committing a crime. DR 4-101(C)(3)."
New York:
N.Y. Op. No. 649 (1993). New York's State Bar Committee on Professional Ethics was here asked to review the duties of an attorney representing an executor when the attorney learns that the executor intends to or has committed a breach of trust. In advising that an attorney "should" disclose a breach of trust in some cases but not in others, the Committee observed:
We have held that while the executor's attorney has a "duty to represent the executor with undivided loyalty," the executor's counsel is prohibited from "taking any position antagonistic to the estate or inconsistent with the executor's duty to carry out the testatrix's will." . . . [T]he attorney, although retained by the executors, has a duty not only to represent them individually, but also to serve the best interest of the estate to which they come in turn, owe their fiduciary responsibilities.
Oregon:
Or. Op. 1991-119 (1991). This opinion follows Opinion No. 1991-62 (1991) in holding that "an attorney for a personal representative represents the personal representative and not the estate or the beneficiaries as such. It follows that when Attorney A represents Widow as an individual and Widow in her capacity as personal representative, Attorney A has only one client." The opinion continues to say that, "[a]lternatively stated, the fact that Widow may have personal interests that may conflict with her fiduciary obligations does not mean that Attorney A has more than one client." Under the Code of Professional Responsibility the lawyer for a personal representative may not disclose wrongs committed by the personal representative: "It follows that unless one of the exceptions to the attorney-client privilege rule applies, Attorney A must not reveal Widow's past wrongs. Attorney A may, however, call upon Widow to correct her past wrongs. If Widow refuses to do so, Attorney A may also seek leave to resign. . . . In fact, Attorney would be obligated to seek leave to withdraw if the failure to do so would cause Attorney to become directly involved in wrongdoing." The opinion also concludes that the lawyer for the trustee of an employee benefit plan represents the trustee and not the beneficiaries of the plan.
Washington:
WRPC 1.6 allows a lawyer to inform the court of misconduct by a court-appointed fiduciary.
Duty to Report Violations of Disciplinary Rules:
Ethics Opinions:
Arizona:
Ariz. Op. 94-09 (1994). A lawyer, who has extensive experience in trust and estate law, is obligated to report the misconduct of another lawyer who charged clearly excessive fees (by "a factor of 10") in connection with the administration of an estate. However, "Because A acquired the fee information through his representation of the [client beneficiary], it would appear that he must obtain the consent of the client before he discloses information to the state bar."
District of Columbia:
D.C. Op. No. 246 (revised, Oct. 1994). Without the informed consent of the client a lawyer who represents a client in a malpractice action against the client's former lawyer may not report an ethical violation by the client's former lawyer if doing so would make use of information that came to the lawyer during the course of representing the client. The lawyer should inform the client of her concern that subjecting the client's former lawyer to disciplinary action might limit the former lawyer's ability to pay any judgment that might ultimately be obtained against him in the malpractice action.
Rhode Island:
In re Ethics Advisory Panel Opinion No. 92-1, 627 A.2d 317 (R.I. 1993). A lawyer to whom the former lawyer for client confessed embezzlement from client may not report misconduct by former lawyer without client's consent. The information was learned during the course of representing the client, which is within the scope of the Rhode Island version of Rule 1.6: "Even though the attorney-client evidentiary privilege may not protect this information, Rule 1.6 prevents the inquiring attorney from disclosing it because it relates to the representation of a client." 627 A.2d at 321. The Advisory Panel asks the Supreme Court Committee to study the rules, canvass other jurisdictions and to consider amending Rhode Island's version of Rule 1.6 to deal with this anomalous situation.
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