American College of Trust and Estate Counsel
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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services.
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) 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; or Page 25
(6) to comply with other law or a court order.
* * * * * * * * * * * * * * *
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 the 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.”
Other Rules Affecting a Lawyer’s Duty of Confidentiality. There are other rules that may impact the lawyer’s duties regarding a client’s confidential information. For example, see IRC 7525, Treasury Department Circular 230, SEC disclosures rules under Sarbanes-Oxley, and MRPC 1.6(b)(6) (right to disclose when required by other law). See also MRPC Rule 1.6(b)(2).
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 and Allocation of Authority Between Client and Lawyer). 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 and Allocation of Authority Between Client and Lawyer), 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 and Allocation of Authority Between Client and Lawyer). 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).
Disclosure of a Fiduciary’s Commission of or Intent to Commit a Fraud or Crime. When representing a fiduciary generally, the lawyer may discover that the lawyer’s services have been used or are being used by the client to commit a fraud or crime that has resulted or will result in substantial injury to the financial interests of the beneficiary or beneficiaries for whom the fiduciary is acting. If such fiduciary misconduct occurs, in most jurisdictions, the lawyer may disclose confidential information to the extent necessary to protect the interests of the beneficiaries. The lawyer has discretion as to how and to whom that information is disclosed, but the lawyer may disclose confidential information only to the extent necessary to protect the interests of the beneficiaries.
Whether a given financial loss to a beneficiary is a “substantial injury” will depend on the facts and circumstances. A relatively small loss could constitute a substantial injury to a needy beneficiary. Likewise, a relatively small loss to numerous beneficiaries could constitute a substantial injury. In determining whether a particular loss constitutes a “substantial injury,” lawyers should consider the amount of the loss involved, the situation of the beneficiary, and the non-economic impact the fiduciary’s misconduct had or could have on the beneficiary.
In the course of representing a fiduciary, the lawyer may be required to disclose the fiduciary’s misconduct under the substantive law of the jurisdiction in which the misconduct is occurring. For example, the elder abuse laws of some states may require a lawyer who discovers the lawyer’s conservator/client has embezzled money from an elderly, protected person to disclose that information to state agencies even though the lawyer’s services were not used in conjunction with the embezzlement. Under such circumstances, MRPC 1.6(b)(6) (“to comply with other law”) would authorize that disclosure.
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.
Client who Apparently has Diminished Capacity. As provided in MRPC 1.14, a lawyer for a client who has, or reasonably appears to have, diminished capacity is 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 ACTEC Commentary on MRPC 1.14, ABA Inf. Op. 89-1530 (1989), and ALI, Restatement (Third), The Law Governing Lawyers, §24, §51 (2000). 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. In disclosing confidential information under these circumstances, the lawyer may disclose only that information necessary to protect the client’s interests. MRPC 1.14 (c).
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 (Third) Law Governing Lawyers, § 15, §60 (2000). Under MRPC 1.18(b) even though a lawyer-client relationship does not result from the initial consultation, the lawyer “shall not use or reveal information learned in the consultation, except as MRPC 1.9 would permit with respect to information of a former client.” In addition, a lawyer who is not retained may be disqualified from representing a party whose interests are adverse to the prospective client in the same or a substantially related matter. See ACTEC Commentary on MRPC 1.18.
Joint and Separate Clients. Subject to the requirements of MRPCs 1.6 (Confidentiality of Information) and 1.7 (Conflict of Interest: General Rule), 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 of interest 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. In the absence of any agreement to the contrary (usually in writing), a lawyer is presumed to represent multiple clients with regard to related legal matters jointly with resulting full sharing of information between the clients. The better practice in all cases is to memorialize the clients’ instructions in writing and give a copy of the writing to the client. Nothing in the foregoing should be construed as approving the representation by a lawyer of both parties in the creation of any inherently adversarial contract (e.g., a marital property agreement) which is not subject to rescission by one of the parties without the consent and joinder of the other. See ACTEC Commentary on MRPC 1.7 (Conflict of Interest: General Rule). 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 that would not otherwise be disclosed.
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 informed consents of the clients some experienced estate planners regularly undertake to represent husbands and wives as separate clients. Similarly, 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 former 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 after such a communication 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 as 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.
Joint and Separate Clients
Cone v. Culverhouse, 687 So. 2d 888 (Fla. Dist. Ct. 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
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.
District of Columbia:
Ethics Opinion 296 (2000). A lawyer who undertakes representation of two clients in the same matter
should address in advance and, where possible in writing, the impact of joint representation on the
lawyer’s duty to maintain client confidences and to keep each client reasonably informed, and obtain
each client’s informed consent to the arrangement. The mere fact of joint representation, without
more, does not provide a basis for implied authorization to disclose one client’s confidences to another.
Without express consent in advance, the lawyer who receives relevant information from one client
should seek consent of that client to share the information with the other or ask the client to disclose
the information to the other client directly. If the lawyer cannot achieve disclosure, a conflict of interest
is created that requires withdrawal.
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.” This opinion is also
discussed in the Annotations following the ACTEC Commentary on MRPC 1.7.
N.Y. Op. 555 (1984). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.7.
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 couples 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.
Restatement (Third) of the Law Governing Lawyers (2000), §60 A Lawyer’s Duty to Safeguard
Confidential Client Information
(1) Except as provided in §§61-67, during and after representation of a client:
(a) the lawyer may not use or disclose confidential client information as defined in §59 if there is
a reasonable prospect that doing so will adversely affect a material interest of the client or if
the client has instructed the lawyer not to use or disclose such information;
(b) the lawyer must take steps reasonable in the circumstances to protect confidential client information
against impermissible use or disclosure by the lawyer’s associates or agents that may
adversely affect a material interest of the client or otherwise than as instructed by the client.
(2) Except as stated in §62, a lawyer who uses confidential information of a client for the lawyer’s
pecuniary gain other than in the practice of law must account to the client for any profits made.
Restatement (Third) of the Law Governing Lawyers (2000), §67 Using or Disclosing Information to
Prevent, Rectify, or Mitigate Substantial Financial Loss
(1) A lawyer may use or disclose confidential client information when the lawyer reasonably believes that
its use or disclosure is necessary to prevent a crime or fraud, and:
(a) the crime or fraud threatens substantial financial loss;
(b) the loss has not yet occurred;
(c) the lawyer’s client intends to commit the crime or fraud either personally or through a third person;
(d) the client has employed or is employing the lawyer’s services in the matter in which the crime
or fraud is committed.
(2) If a crime or fraud described in Subsection (1) has already occurred, a lawyer may use or disclose
confidential client information when the lawyer reasonably believes its use or disclosure is necessary
to prevent, rectify, or mitigate the loss.
(3) Before using or disclosing information under this Section, the lawyer must, if feasible, make a
good-faith effort to persuade the client not to act. If the client or another person has already acted,
the lawyer must, if feasible, advise the client to warn the victim or to take other action to prevent,
rectify, or mitigate the loss. The lawyer must, if feasible, also advise the client of the lawyer’s ability
to use or disclose information as provided in this Section and the consequences thereof.
(4) A lawyer who takes action or decides not to take action permitted under this Section is not, solely
by reason of such action or inaction, subject to professional discipline, liable for damages to the
lawyer’s client or any third person, or barred from recovery against a client or third person.
Obligation Continues After Death
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.]
HLC Properties Ltd. v. Superior Court (MCA Records Inc.), 24 Cal. Rptr. 3d 1999 (2005). Construing
California’s Evidence Code, the state’s Supreme Court held that, “the attorney-client privilege of a natural
person transfers to the personal representative after the client’s death, and the privilege thereafter
terminates when there is no personal representative to claim it.” Therefore, the company taking over
responsibility for running the business ventures of the deceased entertainer Bing Crosby did not succeed
to the entertainer’s attorney-client privilege.
Mayorga v. Tate, 752 N.Y.S. 2d 353 (App. Div. 2002). A decedent’s personal representative may waive
the attorney-client privilege to obtain disclosure in a malpractice case against the decedent’s former
Restatement (Third) of the Law Governing Lawyers (2000), §81A Dispute Concerning a Decedent’s
Disposition of Property, Comment b
. . .
The attorney-client privilege does not apply to a communication from or to a decedent 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.
District of Columbia:
Opinion 324 (2004). A decedent’s former attorney may reveal confidences obtained during the course
of the professional relationship between the decedent and the attorney only where the attorney reasonably
believes that the disclosure is impliedly authorized to further the decedent’s interest in settling her
estate. In “rare situations” where the attorney is unsure what the client would have wanted the attorney
to do, the attorney should seek an order from the court supervising disposition of the estate and present
the materials at issue for an in camera review. For example, if the surviving spouse needed the information
to fulfill the spouse’s duties as executor to administer the estate, disclosure is clearly warranted. If
on the other hand, the surviving spouse is or was engaged in litigation with the deceased spouse, disclosure,
absent a court order, might be inappropriate.
Opinion 38 (1999). An estate planning attorney may disclose confidential information about a deceased
client if the attorney reasonably and in good faith determines that doing so would carry out the deceased
client’s estate plan or if the attorney is authorized to do so by other law or court order. A waiver by the
personal representative of the deceased client’s estate is not a proper basis for disclosing confidential
Opinion 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 91-25 (discussed above) and the recent decision of
the U.S. Supreme Court in Swidler & Berlin v. U.S., supra. 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.”
Eth. Op. 91-25 (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.
Informal Advisory Op. 990146 (1999). An attorney who prepared a will and filed the will in probate
but never opened an estate for a deceased client may not voluntarily provide the estate planning
file or information about the advice provided to the deceased to a personal representative,
unless the deceased expressly consented to such a disclosure. The duty of confidentiality survives
the death of a client. If the attorney, whose services are eventually terminated by the personal representative,
is subpoenaed to provide such information, he may “only do so after the factual and
legal issues related to confidentiality are fully presented to the court” and the court issues an order
to disclose the information.
Informal Advisory Op. 940013 (1994). Confidentiality restrictions apply in a situation where an attorney
prepared a will for a decedent and the decedent’s heirs and their attorneys wanted to discuss the
matter with decedent’s attorney with respect to a possible will contest action. This prohibition against
disclosing confidential information prohibits any disclosure of decedent’s competency without a court
order to do so.
N.Y. Op. 555 (1984). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.7.
Nassau County Bar Op. 304 (2003). A lawyer who was representing a wife in secret planning for
divorce may not after her death disclose confidences to her husband as personal representative.
Husband had sought return of a retainer and then sought the lawyer’s file. Acknowledging the
general rule that a decedent’s personal representative may waive the attorney-client privilege, the
committee concluded that such a waiver was appropriate “if and when acting in the interest of
the decedent-client and his or her estate.”
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 of the Model Code of Professional Responsibility.
2002 Formal Ethics Opinion 7 (2003). A lawyer may reveal the relevant confidential information of
a deceased client in a will contest proceeding if the attorney-client privilege does not apply to the
Op. 2003-11 (2003). The executor of the testator’s estate does have the authority to consent to the disclosure
of confidential information pertaining to the estate planning and other aspects of the representation
of the testator.
Op. 98-97 (1997). Unless permission has been granted by the client or the client’s personal representative,
information about a decedent’s estate planning or other aspects of the representation may not
be released without specific order of court.
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 MRPC 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.’”
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 with Diminished Capacity
ABA Inf. Op. 89-1530 (1989). A lawyer has implied authority to consult diagnostician regarding the
condition of a client.
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.
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. This opinion is also
discussed in the Annotations following
the ACTEC Commentary on MRPC 1.14.
Op. 00-02, 2000 WL 33313185 (2000). A lawyer may not provide a copy of a psychiatric report
relating to the lawyer’s client with diminished capacity to the client’s father. The father previously
had retained the lawyer to represent the child (an adult). Lawyer should advise father to seek independent
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.
Informal Advisory Op. 20000208 (2000). Attorney prepared a will for a client in the past and had
ceased contact with that client since that transaction. Second attorney contacted the first attorney as
to the mental capacity of the client during the period of drafting the will, for the purpose of representing
the client in another action. The first attorney may discuss the competency of the client without
a court order if client is capable of giving consent. If the client is incapable of giving consent to
the disclosure by the first attorney concerning his mental state at the time of the drafting, the attorney
is prohibited from disclosing information related to his representation of client without a court
order. Also, if no court order exists for the disclosure and the client is incapable of giving his consent,
an attorney may discuss the client’s competency with client’s child if the client’s child has been
named as attorney-in-fact under a durable power of attorney, dependent upon the exact terms of that
power of attorney.
Cleveland Bar Op. 89-3 (1989). The lawyer for a person with diminished capacity 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.
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.
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.
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
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.
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.
Disclosures by Lawyer for Fiduciary
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
Borissoff v. Taylor & Faust, 15 Cal. Rptr. 3d 735 (2004). This case is discussed in the Annotations following
the ACTEC Commentary on MRPC 1.1.
Moeller v. Superior Court (Sanwa Bank), 69 Cal. Rptr. 2d 317 (Ca. 1997). This case holds that, since
the powers of a trustee are not personal to any particular trustee but, rather, are inherent in the office
of trustee, when a successor trustee (who in this case also happened to be a beneficiary of the trust)
takes office, the successor assumes all powers of the predecessor trustee, including the power to assert
(or waive) the attorney-client communications privilege.
Wells Fargo Bank v. Superior Court (Boltwood), 91 Cal. Rptr. 2d 716 (Ca. 2000). This case holds that
since the attorney for the trustee of a trust is not, by virtue of that relationship also the attorney for the
beneficiaries of the trust, the beneficiaries are not entitled to discover the confidential communications
of the trustee with the trustee’s counsel, regardless of whether or not the communications dealt with trust
administration or allegations of trustee misconduct. In addition, the work product of trustee’s counsel is
not discoverable. These results obtain regardless of the fact that the fees for the attorney’s services are
paid from the trust.
Riggs Nat’l Bank v. Zimmer, 355 A.2d 709, 713-14 (Del. Ch. 1976). This case is discussed in the Annotations following
the ACTEC Commentary on MRPC 1.2.
Barnett Nat’l Bank v. Compson, 639 So.2d 849 (Fla. Ct. App. 1993). This case is discussed in the
the ACTEC Commentary on MRPC 1.6.
First Union Nat’l Bank of Florida v. Whitener, 715 So. 2d 979 (Fla. Ct. App. 1998), review denied,
727 So. 2d 915 (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.
Jacob v. Barton, 877 So.2d 935 (Fla. Dist. Ct. App. 2004). A trust beneficiary sought discovery of
the trustees’ attorneys’ billing records. In deciding whether the attorney-client privilege and work
product doctrine applied to the billing records, a court must decide whose interests the attorneys
represent—the trustee’s or the beneficiary’s. According to the court, to the extent the attorneys’
work concerns the trustee’s dispute with the beneficiary, their client is the trustee. Since the record
before the appellate court was limited, it could not determine whether the billing records contained
privileged information. The appellate court therefore quashed the circuit court’s order granting
unlimited discovery of the billing records and directed it to determine whether any of the billing
records would be protected.
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.”
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 defendanttrustee
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.
Follansbee v. Gerlach and Reed Smith, 2002 WL 31425995 (Pa. Ct. Com. Pleas), 22 Fid. Rep. 2d. 319
[Civ. Div. Allegh. Ct. (Pa.) 2002]. This case is discussed in the Annotations following
the ACTEC Commentary on MRPC 1.2.
Floyd v. Floyd, 615 S.E.2d. 465 (S.C. Ct. App. 2005). Distinguishing Barnett Nat’l Bank v. Compson,
supra, and instead relying on Riggs Nat’l Bank of Washington, D.C. v. Zimmer, supra, the court here
found that the beneficiary of a trust was entitled to review the opinions of the trustees’ counsel to
ensure that the trustee was acting in accordance with the dictates of his fiduciary duties, particularly
where, as here, the opinions in question were paid for with trust funds.
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. [Caveat: This opinion was decided several years before the 2003
revisions to MRPC 1.6.]
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 MRPC 1.6 may be required.
Advisory 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.”
Eth. Op. 401 (1997). In representing a fiduciary, the lawyer’s client relationship is with the fiduciary
and not with the trust or estate, nor with the beneficiaries of a trust or estate. The fact that a fiduciary
has obligations to the beneficiaries of the trust or estate does not in itself either expand or limit
the lawyer’s obligations to the fiduciary nor impose on the lawyer obligations toward the beneficiaries
that the lawyer would not have toward other third parties. The lawyer’s obligation to preserve
client’s confidences under MRPC 1.6 is not altered by the circumstance that the client is a fiduciary.
A lawyer has a duty to advise multiple parties who are involved with a decedent’s estate or trust
regarding the identity of the lawyer’s client and the lawyer’s obligations to that client. A lawyer
should not imply that the lawyer represents the estate or trust or the beneficiaries of the estate or
trust because of the probability of confusion. Further, in order to avoid such confusion, a lawyer
should not use the term “lawyer for the estate” or the term “lawyer for the trust” on documents or
correspondence or in other dealings with the fiduciary or the beneficiaries. A lawyer may represent
the fiduciary of a decedent’s estate or a trust and the beneficiaries of an estate or trust if the lawyer obtains the consent of the multiple clients, and explains the limitations on the lawyer’s actions in
the event a conflict arises and the consequences to the clients if a conflict occurs.
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).”
N.Y. Op. 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, in turn, owe their fiduciary
2002 Formal Ethics Opinion 3 (2002). Lawyer for the personal representative may seek removal
of his client if the personal representative has breached fiduciary duties and has refused to resign.
Lawyer should first determine if actions of representative constitute grounds for removal under
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.
WRPC 1.6 allows a lawyer to inform the court of misconduct by a court-appointed fiduciary.
Duty to Report Violations of Rules of Professional Conduct
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.
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 MRPC 1.6: “Even though the attorney-client evidentiary
privilege may not protect this information, MRPC 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 asked the
Supreme Court Committee to study the rules, canvass other jurisdictions and to consider amending Rhode
Island’s version of MRPC 1.6 to deal with this anomalous situation.
Disclosure to Third Party
Borissoff v. Taylor & Faust, 15 Cal. Rptr. 3d 735 (2004). This case is discussed in the Annotations following
the ACTEC Commentary on MRPC 1.1.
Informal Advisory Op. 930172 (1993). If an attorney accepts referrals for estate planning from insurance
agent whereby the agent obtains all the information from the clients, compiles the information
in a form, sends that information to the attorney, and the attorney then prepares the estate planning
documents which are returned to the clients via the agent, then the attorney is in violation of MRPC
7.3(b). The agent in this situation is engaging in “in-person solicitation” on behalf of the attorney
which is prohibited under the model rules. By assisting the agent and the client in filling out the
estate planning documents, the attorney is participating in the unauthorized practice of law in violation
of MRPC 5.5. Also, MRPC 1.6 is violated by the attorney-agent relationship because the agent
is delivering confidential legal documents between the attorney and the clients.
Op. 93-04 (1993). A lawyer drafted a trust agreement and pour-over will for a competent client who,
at the same time, executed a durable general power of attorney to a friend authorizing the friend “to do
and perform all and every act, deed, matter and thing whatsoever in [sic] about my estate, property, and
affairs as fully and effectually to all intents and purposes as I might or could do in my own proper person
if personally present...” When the friend asked the lawyer for a copy of the will and trust agreement
the lawyer should inform the client of the request and not provide the friend with the information without
the client’s consent. If the client becomes incompetent, the lawyer is authorized to open his file to
the friend, absent prior instruction from the client to the contrary.
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