Opinion 2007-6

(April 2007)

The inquirer is a lawyer who represented a husband and wife for many years having drafted their Wills and other estate documents. The husband died two years ago and the wife recently passed away. The husband's will was never probated and an estate was never raised because his entire estate was held by the entireties with his wife. The wife's will has now been probated and Letters Testamentary have been issued.

Husband and wife had an only child who was alienated from them both for more than thirty years. During the course of the inquirer's representation of husband and wife, they expressly made it known that they did not want their daughter to receive any part of their estate nor to become involved in any way. The primary residual beneficiary in each will was the survivor of the couple and neither will contained any provision whatsoever for the daughter. The wife had gone so far as to inform the inquirer that she did not want her daughter even to be informed of her demise.

Notwithstanding the foregoing, the daughter is aware of her parents' death and the inquirer advises that he will send the required statutory notice of probate to her. In addition to the notice, the daughter, through her husband who happens to be an attorney, has requested a copy of her mother's will, the grant of letters testamentary and the petition for probate. The inquirer has already agreed to forward these documents to her as they are public documents. However, in addition to the foregoing, the daughter has requested a copy of her father's will which was never probated.

The inquirer asks whether Pennsylvania Rule of Professional Conduct 1.6 which addresses client confidentiality applies to the husband's will and, if so, does it prohibit the inquirer from releasing a copy of the will to the daughter, absent a court order from the Register of Wills compelling its production.

The opinion of the Committee is that the inquirer may do so, if following the consideration of all the facts and circumstances, the inquirer believes that he has the implied authority of the husband to do so.

Pennsylvania Rule of Professional Conduct 1.6 (the “Rules”) provides in part that:

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation…

(d) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.

The husband had no personal representative ever appointed for him, so no person, by operation of law, succeeded to the husband's right to waive a privilege or consent to divulgence of confidential information protected by Rule 1.6. However, under some circumstances, the “impliedly authorized” provision of Rule 1.6a permits a lawyer who possesses such information to reveal it even after the death of a client and even where no personal representative has been appointed.

Commentaries promulgated by the American College of Trust and Estate Counsel addressing the scope of this authority in instances following the death of a client are helpful in looking at this issue. See, www.actec.org.
Its commentary to Rule 1.6 provides in part as follows:

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.

The Committee believes this analysis is helpful in analyzing this inquiry. On the facts and circumstances presented, a practitioner in the position of the inquirer must exercise his reasonable professional judgment and decide if the husband impliedly authorized revealing the contents of his will to his daughter. If the inquirer feels that doing so would likely promote the husband's estate plan, forestall litigation, preserve assets, and further his daughter's understanding of his intentions then it would be permissible. However, if the inquirer does not feel that there is such implied authorization, then without being required by the Court to produce the will, he may not disclose its contents. The Committee notes that even if the inquirer concludes that he has implied authorization to reveal the contents of the will that he is not required to do so, only that he may choose to do so.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.