Summary: Some information acquired by
a lawyer in the course of briefly representing the residuary
beneficiary under a will that she drew for the decedent is not
protected confidential information because it is "generally known."
Other information, not "generally known," is confidential
information that may not be revealed. However, the attorney who
drew the will has the right to disclose to specific legatees that
they are named beneficiaries so that they may take steps to see
that the decedent's wishes are carried out. Such disclosure is
"implicitly authorized" by Rule 1.6(a) of the Rules of Professional
Conduct to carry out the wishes of the decedent, lawyer's former
client.
Facts: Attorney was contacted by the
son ("Son") of a deceased individual ("Decedent") seeking her
assistance in probating the Decedent's will. Son is the Decedent's
next of kin and the residuary beneficiary under a will that
Attorney had prepared a few years earlier for the Decedent. No
contract for services was signed by the Son and no retainer was
paid. Son stated that Financial Advisor ("FA"), who had been named
executor of the will, had declined to serve or to offer the will
for probate due to the relatively small amount of assets in the
Decedent's estate. The Son had represented to FA that
Attorney was the lawyer for the Decedent's estate, and FA therefore
had revealed to Attorney the confidential information that the
value of Decedent's estate was less than the total of the specific
bequests to named legatees ("Legatees"). When Son learned that he
would not benefit as residuary beneficiary under his father's
estate plan, he lost interest in pursuing any further action with
regard to Decedent's will. Attorney inquires whether she has a
right or duty to advise Legatees of information concerning the
Decedent's estate. Son has not responded to Attorney's
requests for permission to disclose this information to
Legatees.
Discussion: It should be noted at the
outset that, based on the facts detailed above, Attorney represents
Son, both in his capacity as a potential beneficiary of the
Decedent's estate and as a person entitled to seek the probate of
the will as Decedent's next of kin. This is the case even though no
retainer has been paid nor any contract signed, facts which are not
required for an attorney-client relationship to exist. See
Mailer v. Mailer, 390 Mass. 371, 374 (1983) (an implied
attorney-client relationship may be established "even though the
attorney is never formally retained and the client pays no
fee"). Furthermore, there can be no "attorney for the
estate," notwithstanding that Son represented Attorney as such to
FA, as only the person named or petitioning for appointment as
executor or trustee can engage the services of an attorney on
behalf of an estate or trust. In Massachusetts, the
attorney's duties run to the fiduciary, not to the entity.
The duty to maintain client confidences derives from both the
attorney-client privilege and from ethical rules. The
attorney-client privilege is an evidentiary not an ethical concept.
Comment [5] Mass R. Prof. C. 1.6. An attorney's ethical duty
to maintain client confidences is far broader than the
attorney-client privilege. Rule 1.6(a) provides that a
"lawyer shall not reveal confidential information relating to the
representation of a client unless the client consents after
consultation, except for disclosures that are impliedly authorized
in order to carry out the representation." Mass R. Prof. C.
1.6(a). This duty is also subject to certain exceptions under rule
1.6(b) which are not applicable in this instance. See Mass
R. Prof. C. 1.6(b). The duty to maintain confidences is extremely
broad, applying to "virtually all information relating to
representation, whatever its source." Comment [5] Mass R.
Prof. C. 1.6.
There are several distinct pieces of information that Attorney
possesses that would be of interest to Legatees: the fact that the
Decedent died, the fact that FA has declined to act, the fact that
no probate proceedings have yet been undertaken, and the fact of
Legatees' status as beneficiaries under the Decedent's estate
planning documents. We will address each of these pieces of
information, first from the standpoint of Attorney's representation
of Son and then in connection with Attorney's representation of her
former client, Decedent.
The Decedent's death is information that Attorney learned in
connection with the representation of Son. Even though the
information is public information, that does not automatically
allow for disclosure. A lawyer must protect even public
information communicated in the course of representation unless
that information is widely available or generally known. Comment
[5A] Mass R. Prof. C. 1.6. In this case, the fact that the Decedent
had died was "generally known" information. His obituary appeared
in the newspapers and remains easily findable on the
internet. Therefore, Attorney may disclose to Legatees the
fact of Decedent's death without Son's consent.
That no petition has yet been filed for probate of the
Decedent's will is also information Attorney discovered in
connection with her representation of Son, as is the fact that FA
is unwilling to serve as executor. The lack of a probate is a
matter of public record as one can simply search the docket in the
appropriate jurisdiction to determine whether a will has -- or has
not -- been filed and, if so, whether probate proceedings have been
initiated. In the circumstances of this case, we also regard
that the fact that no probate of the Decedent's will is pending is
information that is so easily obtainable as to permit its
disclosure. On the other hand, the information that FA has declined
to petition for appointment as executor is confidential information
that Attorney gathered solely in the course of representation of
Son and this cannot be disclosed to Legatees.
Legatees' status as beneficiaries under the Decedent's estate
planning documents, however, was presumably known to Attorney prior
to establishing an attorney-client relationship with Son, inasmuch
as Attorney drafted the documents for Decedent when she represented
him. On the other hand, the fact that the Decedent's assets
at his death were so meager as to make the Legatees the only real
beneficiaries under the Decedent's will is information that
Attorney possesses solely in connection with her representation of
Son. For that reason, that information is clearly confidential
information that she cannot disclose to Legatees.
Lastly, we address the question of whether Attorney has a right
or duty to disclose to Legatees the fact that they were named as
beneficiaries in the Decedent's will so that they can take steps to
see that his dispositive wishes are carried out. Mass R. Prof. C.
1.6(a) authorizes an attorney to reveal confidential information
that is "impliedly authorized to carry out that representation."
Attorney's former client Decedent asked for her assistance in
connection with the preparation of his estate planning documents.
The estate plan contemplated by those documents is presently being
thwarted by the circumstances that FA does not want to undertake to
probate the will because of the amounts involved and Son doesn't
want to proceed with the probate because there is nothing in it for
him. As a result, there is a real danger that the Decedent's
funds will escheat under the Commonwealth's abandoned property laws
and not pass to the people that the Decedent intended to benefit.
We are not prepared to advise whether Attorney has a duty as Decedent's
former lawyer to take steps to prevent this result from occurring
because that involves, at least in part, a question of substantive
fiduciary law as to which we may not under our Rules give advice.
However, we do think that the language quoted above from Rule
1.6(a) authorizes Attorney, in her status as decedent's former
lawyer, to inform Legatees of their status so that they may take
such steps themselves, even if Son does not respond to Attorney's
requests for permission to make the disclosure. Absent the informed
consent of Son, however, we do not think that Attorney may
represent Legatees in connection with the probate of Decedent's
will or the settlement of his estate. Son, as an heir at law of
Decedent, would be an interested person in any such proceedings and
is potentially adverse to Legatees, since he would benefit more if
the will were not probated and Decedent's estate passed under the
intestacy laws. Although Son is a former client, the representation
of Legatees would be in the same or a substantially related matter
to the one in which Son initially sought Attorney's assistance and
under Mass R. Prof. C. 1.9 she would be precluded from representing
them absent his consent.
This advice is that of a committee without official
government status.
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on January 20,
2011.