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Ethics Advisory Opinion 05-09

April 13, 2005

South Carolina Bar Ethics Advisory Opinion 05-09

RULE 1.6

Date April 15, 2005

Facts
Attorney A drafted a Will for Client which named Client’s Wife as personal representative (“APR”) and Client’s Son as successor PR. The will has never been probated, nor recorded in the probate court of the county where Client was domiciled, although Client has been dead for several years. Client at his death owned an interest in certain real property located in the county of his domicile (“Property”). Attorney A believes Client’s Wife is either deceased or incompetent. Neither her will nor her estate has been filed in the probate court in the county where the Property is located.

Attorney B has requested a copy of the Will in order to check title on the Property, which has been transferred at least once after Client’s death. Attorney B has stated that a copy of the Will with an affidavit was given to the title company in connection with the prior transfer, but Attorney B has only seen the affidavit and the first and last page of the Will, and therefore has no basis upon which to judge the validity of the affidavit. Attorney B has also stated that the will had been publicly circulated in connection with establishing a chain of title for the Property.

Questions
Can Attorney A ethically provide a photocopy of the Will to Attorney B without receiving permission from anyone?

Can Son waive confidentiality on behalf of Client either by virtue of being named as successor PR in Client’s will or otherwise?

Summary
Assuming Attorney A does not have the original of Client’s will, he will not violate any ethical rules if he refuses to furnish Attorney B with a copy of the will, and this decision should not be reexamined. If, however, Attorney A believes that disclosure of the contents of the will would be in furtherance of Client’s intent, and Client did not forbid him to disclose, he may furnish Attorney B with a copy of the will, as being impliedly authorized in order to carry out the representation of Client as permitted by Rule 1.6(a).

If Attorney A has Client’s original will or codicil in his possession, he should review ' 62-62-901, South Carolina Code of Laws (1976), which requires anyone in possession of a will of codicil of a decedent to deliver it to the judge of probate having jurisdiction, on pain of being punished for a misdemeanor. This course of action would render moot the question of providing a copy to Attorney B and could also comply with Rule 1.6(a), assuming that Attorney A believes that disclosure of the contents of the will would be in furtherance of Client’s intent and Client did not forbid him to disclose. If either of these conditions is not met, it is unclear how Attorney A, in possession of an original will or codicil of Client could comply with both the statute and rule 1.6. It has been suggested in another jurisdiction that lawyers have a written agreement with clients as to the disposition of wills held by them; such an agreement would resolve this conflict.

It would appear that neither son nor anyone else would be authorized to waive confidentiality on behalf of Client. Attorney-client confidentiality survives the death of the client, and there is no authority for its waiver by third parties.

Opinion
There is a distinction between “confidentiality” and “privilege”:

“The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.” Comment, Rule 1.6, Rule 407, South Carolina Rules of Professional Conduct, South Carolina Appellate Court Rules. (“RPC”)

Since this committee does not opine as to matters of law, the subject of privilege is outside its purview. As the quoted paragraph makes clear, privilege is not an issue anyway, since the factual scenario does not involve a judicial or other proceeding.

Rule 1.6 prohibits in relevant part disclosure of all “. . . 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) . . .”, which does not appear to be relevant here. The comments enlarge upon this a bit, by implying an authorization “. . . to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority.” The effect of this rule continues after the representation has ended. (See Opinions 98-30 and 90-30), and many, if not most, jurisdictions that have issued ethics opinions believe the rule extends after the death of the client. (See Disciplinary Board of the Hawaii Supreme Court, Formal Opinion No. 38, 1999; District of Columbia Bar, Opinion 324, 2004; Los Angeles County Bar Association Professional Responsibility and Ethics Committee, Opinion No. 491, 1997.)

No Disclosure
The lawyer's exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure. (CPR, Scope) Based on the lack of explicit direction in Rule 1.6, and the presumption of confidentiality, Attorney A may exercise his discretion not to disclose Client’s will, and it would appear that this would be within the ethical rules and not subject to reexamination.

Permitted Disclosure
Attorney A may reasonably believe that Client implicitly authorized him to disclose the contents of the will in order to carry out Client’s testamentary intent and make his will known to his beneficiaries. ABA Informal Opinion 89-1530 considered the case of a client who was mentally impaired and concluded that Rule 1.6, in conjunction with Rule 1.14, authorized the lawyer to disclose the client’s impairment to a physician in order to serve the best interests of the client. It would seem to be axiomatic that, although Client might want to keep secret the contents of his will prior to his death, the purpose of a will is to be published and to control the disposition of the decedent’s assets. It would be in Client’s best interests and in accordance with his intent in executing the will to pass clear title to the Property to his beneficiaries. There is no indication that Client intended for Attorney A to keep the will secret after Client’s death.

Without specific information concerning any subsequent will, Attorney A could reasonably conclude that Client intended for his will to be carried out and that the possibility of liability to Client’s beneficiaries arising out of a potential defect in the title of the Property passing from Client to the beneficiaries outweighed any doubt as to whether Client might have wanted the contents of the will kept secret after his death. Under these circumstances, Attorney A may deliver a copy of Client’s will to Attorney B, in compliance with Rule 1.6.

If Attorney A Has the Original of Client’s Will
This committee does not give advice as to matters of law. However, where statutory or case law is relevant to ethical matters, we may point out such items to inquirers. If Attorney A has Client’s original will or codicil in his possession, he should review ' 62-62-901, South Carolina Code of Laws (1976), which requires anyone in possession of a will of codicil of a decedent to deliver it to the judge of probate having jurisdiction, on pain of being punished for a misdemeanor. This course of action would render moot the question of providing a copy to Attorney B and could also comply with Rule 1.6(a), assuming that Attorney A believes that disclosure of the contents of the will would be in furtherance of Client’s intent, and Client did not forbid him to disclose.

If either of the preceding conditions is not met, it is unclear how Attorney A, in possession of an original will or codicil of Client, could comply with both the statute and Rule 1.6. There is no other provision in Rule 1.6 that would allow Attorney A to disclose the contents of the Will. The former Code of Professional Responsibility (“CPR”) had an exception to the rule of confidentiality that permitted disclosure when required by law. Rule 1.6 makes no such exception, but a comment appears to restate the old rule: “A lawyer may not disclose . . . information except as authorized or required by the Rules of Professional Conduct or other law.” (Emphasis added.)

It has been suggested in another jurisdiction (New York State Bar Association Committee on Professional Ethics, Opinion 724 - 11/30/99) that lawyers have a written agreement with clients as to the disposition of wills held by them; such an agreement would resolve this conflict.

Waiver by Son
Attorney-client privilege, or work product privilege, according to the comments to Rule 1.6 may be waived, and there are many legal rules regarding such waiver, all of which are beyond the scope of this committee’s activity. There is no indication in the RPC that confidentiality can be waived by anyone but Client, who in the present fact situation is dead and unable to do so. Two state ethics opinions that deal with this issue both conclude that no third party has authority to waive confidentiality on behalf of a deceased client. (Connecticut Ethics Opinion 90-26, Disciplinary Board of the Hawaii Supreme Court, Formal Opinion No. 38, 1999.)

It would appear that neither son nor anyone else would be authorized to waive confidentiality on behalf of Client.

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