Opinion 2008-10 (September 2008)

In 1996 the inquirer’s partner met with B and upon her instruction, prepared a will, power of attorney and living will for her. The inquirer and his secretary were the witnesses on the will which was not notarized. Subsequently, still in 1996, B wanted a change in the power of attorney which was made and that changed document was signed in 1996. Neither the inquirer nor his partner had any further contact with B until 2007.

In 2007, B’s stepdaughter C and C’s son D, came to the inquirer’s office. They advised that B wanted to make a change in her 1996 Will, to include C’s two sons (D and his brother) as beneficiaries. There were significant discussions regarding why the will was to be changed as well as B’s current mental state. There also were significant statements made by C and D to the inquirer and his partner which could very well be relevant in a will contest, and which, presumably, they would object to the inquirer and his partner disclosing.

On that same day the inquirer and his partner, along with C and D, visited B in the nursing home where she currently resides. The inquirer and his partner determined immediately that B no longer had testamentary capacity and they did not want to be further involved in the execution of a new will for B under any circumstances. They immediately so advised C and D, and told C and D that they were free to seek a second opinion on the issue if they wanted to. While the inquirer does not remember if a check had been received from C for the work, if it was received it was never deposited and it was immediately returned.

B subsequently died in 2008 and her 1996 will was submitted for probate and is now the subject of a will contest in New Jersey. Among the allegations made in that proceeding are that B’s signature was either a forgery or that the will was not otherwise properly witnessed and acknowledged. Other allegations in the New Jersey pleadings strongly implicate that the inquirer and his now retired secretary signed the will as witnesses long after it was executed, and furthermore that while the inquirer indicated he had no recollection of being a witness to the 1996 will in his conversation with C during her 2007 visit, less than two months later the inquirer executed a Deposition of Subscribing Witness in which he swore he was a witness to the signing of the 1996 will.

The inquirer and his former secretary have now been contacted by counsel for the executrix about the procedures followed in executing the will and the inquirer, his secretary and his partner need to know what they can reveal to counsel about advice given when the will was executed as well as the content of the inquirer’s and his partner’s conversations with C and D on the one day they met in 2007.

Pennsylvania Rule of Professional Conduct (the “Rules”) 1.6 Confidentiality of Information provides 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, and except as stated in paragraphs (b) and (c).

(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.

(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another;

(3) to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used; or

(4) 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 or disciplinary proceeding 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

(5) to secure legal advice about the lawyer’s compliance with these Rules; or

(6) to effectuate the sale of a law practice consistent with Rule 1.17.

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

Rule 1.18 Duties to Prospective Clients provides that:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information which may be significantly harmful to that person learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When a lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, or;

(2) all of the following apply:

(i) the disqualified lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client;

(ii) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(iii) written notice is promptly given to the prospective client.

Rule 8.5 Disciplinary Authority; Choice of Law provides that:

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits shall be applied, unless the rules of the tribunal provide otherwise; and

(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

The Comments in part to that Rule provides in part that:

4. Paragraph (b)(1) provides that as to a lawyer’s conduct relating to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits unless the rules of the tribunal, including its choice of law rule, provide otherwise. As to all other conduct, including conduct in anticipation of a proceeding not yet pending before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in another jurisdiction, the rules of that jurisdiction shall be applied to the conduct. In the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction. [emphasis added]

5. When a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule.

The first issue to be resolved is whether there was any attorney-client relationship that existed between the inquirer, his partner and C and D. The Committee finds that neither an actual nor prospective attorney-client relationship ever existed between the inquirer, or his partner and C and D. The only reason for the contact between C and D and the inquirer and his partner in 2007 was to discuss B’s alleged desire to change the content of her 1996 will. C and D were there on behalf of B and were not there as independent clients or potential clients. The fact that money which was immediately returned may have exchanged hands is irrelevant. Given the inquirer and his partner’s immediate opinion that B no longer had testamentary capacity, it was clear that no further representation of B occurred. Thus, as regards any discussion that occurred between the inquirer and his partner and C and D in 2007, such discussions are not confidential and can be revealed to whomever the inquirer and his partner wish.

Turning now to the issue of the 1996 original and subsequent visits by B, the Rules contain several provisions through which the inquirer and his partner as well as his retired secretary would be allowed to reveal what occurred during those visits. First, the executrix of the will, who stands in the place of the decedent, can give her consent to waiving confidentiality and thus allow such disclosures. This was part of the Committee’s advice in opinion 2003-11:

“…However, Rule 1.14, which deals with a client under a disability, recognizes the court's ability to appoint a legal representative, such as a guardian, to act on behalf of a client in certain circumstances. The comments to Rule 1.14 state that when a legal representative has been appointed for a client, the lawyer should look to the representative for decisions on behalf of the client. Since an executor is the legal representative of a decedent's estate, it follows that a lawyer may look to that person for decisions on behalf of the estate. Therefore, if appointed executor of the client's estate, the father would be authorized to consent to the disclosure of confidential information and information relating to representation of the client. . “

In addition, the Committee finds that there is implied consent under Rule 1.6b for the inquirer to disclose whatever may help further the 1996 testamentary intent of B since the inquirer was hired to draft a will to effectuate B’s desire as to how her estate was to be distributed. This same rationale extends to the codicil that was executed later in 1996. This rationale was applied by the Committee in prior opinion 2007-6 which provided in part that,

“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 …

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.”

Furthermore, given that the petition challenging the validity of the 1996 will, makes allegations regarding the execution of the 1996 will and conduct thereafter regarding that will these allegations clearly call into question the conduct of the inquirer, his partner and their then secretary, and thus disclosure would be permitted under the provisions of Rule 1.6c4.

In closing, the Committee notes that the proceeding advice in this opinion is based on the Pennsylvania Rules of Professional Conduct and the assumption that the inquirer’s conduct, as well as that of others in his firm is governed by those Pennsylvania Rules. However, the Committee wishes to draw the attention of the inquirer to the provisions of Rule 8.5. While all of the inquirer’s 1996 conduct occurred in Pennsylvania, and he would most likely be in Pennsylvania when disclosures were made, there is a proceeding pending in New Jersey. It is possible that New Jersey Rules regarding disclosure of confidential information, as well as the issue as to whether there was any attorney-client relationship or prospective attorney –client relationship which existed between the inquirer, his partner and C and D arising out of the 2007 contact, might be governed in whole or in part by the New Jersey Rules of Professional Conduct. If after carefully examining Rule 8.5, the inquirer believes this is a possibility, then he should seek the appropriate opinion from local counsel in New Jersey before proceeding.

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.