Opinion 98-22
(March 1999)

The inquirer is the co-executor under a will which he drafted for the decedent. After the decedent’s death the inquirer met with the decedent’s surviving husband and co-executor and with the decedent’s daughter. The inquirer reviewed with them the costs and process for administration of the decedent’s estate. The inquirer quoted an hourly rate for his legal services to the estate and confirmed his agreement to waive any commission as co-executor.

After this initial meeting with the decedent’s husband and daughter, the inquirer wrote to the husband advising him that he had obligation to probate the estate of his wife, which included both jointly-held assets and assets held by decedent alone.

The decedent’s husband responded to the inquirer’s letter by explaining that he had decided not to probate his wife’s will because of the extremely simple nature of the arrangements between my wife and myself. Decedent’s husband also asked the inquirer to forward to him his wife’s original will, his own will, and any other legal documents the inquirer has. The inquirer has no personal or professional objection to returning these documents, but wants some assurance that returning the documents does not violate any legal or ethical obligation.

The charge of the Professional Guidance Committee is to opine on the application of Pennsylvania Rules of Professional Conduct to future conduct to be taken by an attorney. Several issues raised by the inquiry, such as the inquirer’s obligations as a fiduciary under substantive law as co-executor of the will, and any obligations the inquirer might have that arise under substantive law governing this situation, are normally beyond the scope of the Committee’s charge, and this opinion will not address those issues. Turning to issue of ethical compliance, it is clear that the initial consultation between the inquirer and decedent’s husband constitutes a confidential communication between a lawyer and his client, protected by Rule of Professional Conduct 1.6. Thus, the inquirer has an affirmative ethical obligation to maintain the confidentiality of these communications, even after the termination of the lawyer-client relationship, as provided by Rule 1.6 (d).

The Committee notes, however, that there are several exceptions to the confidentiality mandated by that rule, such as permitted disclosure to prevent a crime that may result in death or serious bodily or economic injury to the person or property of another (1.6c1), or disclosure to prevent or rectify the consequences of a client’s crime or fraud in which an attorney’s services are being or have been used (1.6c2). If the inquirer reasonably believes that either one of these exceptions applies based on substantive law, and if the client does not change his position, the inquirer is ethically permitted to make the necessary disclosures to remedy the crime or fraud. Although disclosure in such a situation is not mandatory, the Committee cautions the inquirer to be sure that his own conduct in not probating the will is not criminal. Further, the inquirer may not aid and abet a fraud by the client. Providing these conditions are met, the Committee sees no ethical barrier to the return of the requested documents to the decedent’s husband.

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.

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.