Voluntary-DisclosureAs a practicing lawyer, one of the best risk-management tools available to you are the ethics rules. Not because you need someone to tell you it’s a bad idea to lie, steal or cheat; but because you need someone to point out the pitfalls that are NOT self evident. As former Secretary of Defense Donald Rumsfeld famously put it, it’s the “unknown, unknowns” you need to worry about.

Here’s how Prof. Michael Schutt makes this same point in his excellent book Redeeming Law:

When I practiced law, I paid attention to the ethical rules only when I was involved in a case involving disqualification for conflict of interest.  . . .  The problem wasn’t that I was dishonest but that I had way too much confidence in my own honesty.  . . .  I believed my own high standards as a Christian were well above the rules of ethics — those rules were for those who wanted to do the bare minimum. I had a higher standard.  . . .  This is a recipe for disaster . . .  Codes of legal ethics are the wisdom of those who have gone before, helping us define the standard. Without the rules of ethics, we don’t even know what the issues are.

Advisory Opinion 10-3:

On February 1, 2011 the Florida Bar’s Professional Ethics Committee published Advisory Opinion 10-3. This advisory opinion focuses on an issue that comes up all the time for estate planning lawyers: what to do when your clients die and someone asks for a copy of your file. The answer might surprise you. For example, when the deceased client’s personal representative calls you up and asks for a copy of your file, do you automatically say “yes.” Wrong answer! Assume the same scenario but the person calling is one of the decedent’s heirs, not the personal representative. Do you automatically say “no.” Again, wrong answer!

When to disclose client confidences is a question no lawyer should take lightly. Don’t trust your “gut” to make the right call. The answer that seems intuitively right to you may be a disaster waiting to happen. Consider these hypotheticals:

[1] Is the Personal Representative automatically entitled to disclosure of all of your estate planning client’s secrets? NO

Here’s how the proposed advisory opinion addressed this scenario:

The exception to [Rule 4-1.6] most likely to apply in such requests is set forth in subdivision (c)(1): “to serve the client’s interest unless it is information the client specifically requires not to be disclosed.” Thus, if a personal representative asks for confidential information relating to a decedent’s estate plan and the decedent’s lawyer determines that disclosure of the information would aid in the proper distribution of the decedent’s estate according to the decedent’s wishes, the lawyer may properly disclose the information to the personal representative, unless the decedent specifically required that the information be kept confidential. For example, in Florida Ethics Opinion 72-40, a client instructed the inquiring lawyer who was hired to assist the client with estate planning to “forget” that the client had a “large amount of bearer bonds, registered jointly with his wife.” The opinion concludes that the lawyer may not disclose the existence of these assets to the bank which was to be the sole executor of the client’s estate unless the client gave consent to the disclosure or unless ordered to do so by a court, whether the inquiry was made before or after the client’s death. The opinion states that “the duty to preserve a client’s confidences survives his death. . . .” Thus, a lawyer must undertake the appropriate analysis under the confidentiality rule, even if it is the personal representative who requests information of the decedent from a lawyer who assisted in the decedent’s estate planning and the information sought relates specifically to that estate plan.

[2] Can you disclose an estate planning client’s confidential information to his heirs? MAYBE

Here’s how the proposed advisory opinion addressed this scenario:

[I]f a beneficiary or heir-at-law asks for specific information and the decedent’s lawyer determines that voluntary disclosure of the information would serve the decedent’s interests, the lawyer may disclose that specific information. For example, a lawyer might provide a copy of the decedent’s will or disclose information relating to the execution of a will to a beneficiary or heir-at-law if the lawyer reasonably believes that disclosure of the information would forestall litigation by the beneficiary or heir-at-law, thereby conserving assets of the estate in the exercise of the lawyer’s professional discretion. However, information that the decedent specifically required the lawyer not to disclose to others may not be disclosed by the lawyer to the beneficiary or heir-at-law, regardless of whether the information is privileged. For example, a deceased client may have specifically instructed the lawyer not to disclose information to anyone about an illegitimate child or an extra-marital relationship.

I find this second conclusion a bit troubling. In the absence of a subpoena, I don’t see myself voluntarily disclosing confidential information about a deceased client to anyone other than his personal representative. And I’m not the only one who feels this way. In a 2003 Florida Bar Journal Article entitled Post-death Confidentiality of Estate Planning Communications Between Attorney and Client, well-known trusts and estates attorney Barry F. Spivey concludes it would be an ethics violation to voluntarily disclose client confidences to an heir who hasn’t been appointed personal representative:

In Florida Bar Staff Opinion 20749 (March 9, 1998) [see Appendix 1], the question raised was whether a lawyer who had prepared a former will of a decedent (whose last will was prepared by another lawyer) could voluntarily (i.e., without subpoena) furnish a copy of the prior will to an attorney for a potential contestant of the last will. The opinion implies that no will contest had yet been filed, indicates that the confidentiality rule (4-1.6) applies to the facts of the request (citing the comment to the rule that states that the duty “continues after the client-lawyer relationship has terminated”), and notes that none of the exceptions to the rule applied to the facts (however, keep in mind that the preamble to the Florida Rules of Professional Conduct states specifically that the comments are intended only as guides to interpretation, and do not add obligations to the rules). Although it gives no specific instruction to the inquiring lawyer, the opinion must be read as concluding that voluntary disclosure of the prior will of a deceased client is prohibited by the duty of client confidentiality. This seems evident from a reading of Rule 4-1.6(a).

Mr. Spivey is rightly known as one of the smartest probate lawyers in Florida. He’s the kind of guy you hope you can call when you have an especially thorny issue to work through. And yet, what seemed “evident” in 2003 wasn’t so clear in 2010 to the drafters of Proposed Advisory Opinion 10-3. Which underscores my initial point: this stuff isn’t intuitive; you need to stop, read the ethics rules and related advisory opinions before you even have a chance of spotting the issues, let alone make the right call.