The inquirer's firm (through a now-departed associate) represented the administrator of an estate (Estate #1). The administrator was the brother of the decedent who died intestate in 1999. The administrator stated that there were no other surviving siblings, therefore the administrator was the sole heir of the estate. The decedent owned real estate which Inquirer's firm transferred to the administrator as sole heir of the estate.
The administrator died in 2002. Another attorney from a different firm handled administration of the estate (Estate #2). The decedent in Estate #2 was survived by a daughter who renunciated her right to administer Estate #2 in favor of a non-family member. The real estate from Estate #1 which had been transferred to the decedent of Estate #2 was then transferred to that decedent's daughter.
The daughter died in 2003 (Estate #3). The attorney that handled Estate #2 also handled Estate #3 and the administrator from Estate #2 was appointed administrator of Estate #3. The administrator of Estate #3 transferred the real estate from Estate #1 and #2 to the heirs of Estate #3.
Thirty days after the decedent in Estate #3 died, the inquirer found out from other relatives that another brother survived the decedent from Estate #1. This other brother was now deceased but is survived by a son. As a result of this new information, inquirer now believes that the transfer of the real estate to the administrator as heir in Estate #1 may have been improper.
The attorney that handled Estate #1 no longer works with inquirer. Inquirer is now a sole practitioner.
The inquirer poses the following questions:
Is it appropriate for the Inquirer to confirm that the administrator of Estate #1 had a brother?
After confirmation, does inquirer have a duty to advise the court or anyone else?
May Inquirer represent the family members seeking to set aside the deed prepared in connection with Estate #1 and possibly the deed in Estate #2?
Is Inquirer permitted to refer the family members to another attorney?
The Committee will address these questions seriatim:
There is nothing in the Rules of Professional Conduct to prevent the Inquirer from confirming that the administrator of Estate #1 had a brother, as long as it can be accomplished without breaching any confidences related to representation of the administrator, which are preserved under Rule 1.6(d), even though the representation has terminated.
There is no rule that compels disclosure of this type of information to the court or anyone else. Although Rule 3.3 advocates candor toward the tribunal and, among other things, requires an attorney who offers material evidence and later learns of its falsity to take reasonable remedial measures, subsection (b) of the rule specifically states that the duty only applies until conclusion of the proceeding, which in this case was the closing of Estate #1.
The Inquirer may not represent the family members of the administrator from Estate #1 because Rule 1.9 would not allow for an informed waiver by the former client.
There is no rule prohibiting the Inquirer from simply referring this case. In fact, it is the Committee's position that the best services can be rendered by providing the family members with several different names or referring them to the lawyer referral service. However, as stated by the Committee in the past, an attorney may not accept a referral fee for referring out a case solely because that attorney has a conflict of interest. Therefore, the inquirer may not accept a fee for referring this case.