Opinion 91-4
(March 1991)

You have asked the Committee whether you may disclose the contents of an earlier Will to the Testator's children. We understand the facts to be as follows.

You prepared the earlier Will for Testator and retained the original for safekeeping. This Will named you as Executor and one of the Testator's children as alternate. Testator moved to another state, where he later consulted a different attorney and executed a new Will, revoking all earlier Wills. You continued to represent Testator concerning some other matters in Pennsylvania. Upon his death, Testator's new Will was probated. Unlike the earlier Will, it contained no gift for any of the Testator's children or other family members. Apparently, Testator had told one or more of the children that he had made a Will with you. One of the children, and an attorney representing all of the children, has asked you to disclose the contents of the earlier Will to them. The children's attorney has threatened you with suit if you refuse.

You wish to know whether you may disclose the contents of the Will to the children or their attorney. You wish further to know whether the propriety of the disclosure is affected by the earlier Will's provision appointing you and one of the children as Executor and alternate.

Rules 1.6 (a) and (d) of the Rules of Professional Conduct state:

(a) A lawyer shall not reveal 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 paragraphs (b) and (c).

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

The mandatory language of Rule 1.6(a) prohibits you from disclosing the contents of the Will to the children or their attorney, as your client, the Testator, has not authorized you to do so. The earlier Will constitutes confidential information relating to your representation of the Testator, and your duty not to reveal its contents continues even after your client's death. (Since the children learned from the Testator that the earlier Will existed, we do not address whether you may properly reveal the existence of an earlier Will when contacted by a family member.) Confidentiality is not affected by the provisions in the earlier Will naming you and a child as Executor and alternate. This inchoate representation was eliminated when the new Will revoked the earlier Will. This opinion does not address whether a court of competent jurisdiction may order you to produce the earlier Will, or whether applicable substantive law would allow the personal representative to waive the attorney client privilege.

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.