Opinion 2000-6
(July 2000)

The inquirer acted as counsel to an administratrix. The decedent's two minor children were awarded distribution of the estate. The decedent's ex-wife is the natural guardian of the two children. The distributions were placed in restricted certificates of deposit for a period of one year from July 1998 to July 1999 and were "not to be withdrawn until the children reach the age of 18 or by order of court." The certificates of deposit reflect the names of the two children and their address which is also the guardian's address.

During the inquirer's representation of the administratrix, the administratrix instructed the inquirer not to advise the guardian of where the funds were deposited. The guardian has recently advised the inquirer that she never received notice of what happened with the distribution of funds for her two children. The inquirer believes that notice of the investment rollover never reached the guardian.

It does not appear that a custodian of the beneficiaries' account was appointed.

The inquirer asks whether the inquirer may send the guardian a copy of the certificates of deposit without violating Rule 1.6.

Rule 1.6(a) of the Pennsylvania Rules of Professional Conduct provides that:

A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

In light of the client's specific instruction not to disclose the location of the funds, we cannot conclude that disclosure is impliedly authorized.

Paragraph (b) is not relevant here.

Paragraph (c) of Rule 1.6 permits, but does not require, disclosure of information relating to the representation to the extent the lawyer reasonably believes the disclosure is necessary, among other things,

(1) 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; [or]

(2) to prevent or to 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 ...

As related by the inquirer, it does not appear that the administratrix intends to commit a criminal or fraudulent act as to the beneficiaries, but rather she distrusts the guardian. If that is the case in the view of the inquirer, then the inquirer may not disclose the location of the funds to the guardian. The inquirer, however, should ask for the client's permission to disclose the requested information to the guardian. Should the client refuse such permission after remonstration by the inquirer, the inquirer has the ability to respond to the guardian that she may want to consult with her own attorney regarding seeking a court order for disclosure of the confidential information that the inquirer can't reveal.

Rules 1.1 (Competence), 1.2 (Scope of Representation) and 1.4 (Communication) also bear on this inquiry. The inquirer is in the present situation in part because it does not appear that a custodian of the beneficiaries' account was ever appointed. Part of the inquirer's responsibility is to make sure that all aspects of the representation of the estate are completed, and this would normally include making sure that there is a custodian of the funds, particularly in a situation where there appear to be familial tensions as in the present matter. In addition, the inquirer's client has responsibility for and potential liability for not assuring that someone is in charge of the beneficiaries' account, and this should be communicated to the client stressing the importance of immediate action in this regard.

CAVEAT: The foregoing opinion is advisory only and is based on the facts set forth above. The opinion is not binding on 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.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.