MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2009-05
Does Attorney-Client Privilege Apply to an Unratified Will that Personal Representatives are Requesting
Law firm provided pro bono services for an elderly resident of a Veterans hospital by engaging in discussions about her needs for a will. As those discussions proceeded it was discovered that her assets were quite significant. The complexity of preparing the proposed will expanded as the firm was directed by her to locate about 35 proposed beneficiaries. The firm prepared five drafts of the will but the client passed away before the final draft could be executed.
When the client died the firm sought advice from Bar counsel, who advised them to seal their files and cease all work. Bar counsel also advised the firm that the attorney-client privilege would survive her death and they could no longer discuss their representation of the client with anyone. Now the firm has been contacted by two individuals in possession of Letters of Administration for the firm’s former client’s Estate. They are seeking a copy of the unexecuted will. The firm wants advice on whether it can provide that information given Bar counsel’s admonition concerning attorney-client privilege.
This Committee ordinarily does not opine on legal questions, and this appears to be just that. However, it is hornbook law that a duly appointed personal representative/legal administrator of a deceased person has all of the rights and privileges of the deceased, commonly stated as “stands in the shoes” of the deceased. See, Md. Code Ann., Estates and Trusts Article,
Sec. 1-301(a). That being the case, the Personal Representatives are entitled to possess anything that belonged to the deceased, which would obviously include the unexecuted copy of the will.
Rule 1.6, Md. Rules of Professional Responsibility, addresses the lawyer’s duties to not reveal information relating to representation of a client unless the client gives consent. It provides as follows:
Rule 1.6 Confidentiality of Information.
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonable certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules, a court order or other law;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with these Rules, a court order or other law.
Given the fact that the Personal Representative is, for legal purposes, the client, giving the unexecuted will to that Personal Representative does not amount to a disclosure. Even if it did, however, Rule 1.6(b)(6) permits disclosure to comply with a “court order.” The Letters of Administration presented the firm by the Personal Representative are a court order entitling that Personal Representative to gather all of the property of the decedent. See, Safe Deposit & TrustCo. of Baltimore v. Tait, 54 F.2d 383 (D. Md. 1931); Sullivan v. Doyle, 193 Md. et al., G7 A.2d 246 (1949); State for use of Czyzowicz v. Brown, 170 Md. 97, 183 A. 256 (1936).
Rule 1.15(d) is also instructive here. That rule states, in pertinent part:
Rule 1.15 Safekeeping Property
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(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property.
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Pursuant to this rule a lawyer must promptly deliver to a client or a third person any property that the client or third person is entitled to receive. Even if the Personal Representative is not actually the “client”, he/she certainly has, under the law, the right to receive all property of the decedent. The unexecuted will prepared for the client is such property and the personal representative is entitled to receive it.
It is the opinion of the Committee that the applicable Estates and Trust principles, in combination with the aforesaid Rules of Professional Responsibility, require that the law firm turn copies of the unexecuted will over to the duly appointed Personal Representative.