MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-17
Duty of Confidentiality
You have sought the advice of the Committee with respect to your obligations regarding the disclosure of information of a confidential nature. You noted that several years ago that you represented an estate and that you subsequently withdrew your appearance because you could not agree with the personal representative on a course of action for the continuing administration of the estate. In that regard, you note that the personal representative was removed and a subsequent representative was installed. The current personal representative is currently in litigation against a bank that purportedly wrongfully released funds to the former personal representative who has allegedly disappeared with the funds.
Your letter relates that the new personal representative seeks to depose you and has instructed you to provide copies of your entire file with respect to the prior personal representative and the estate. Pursuant to a motion for protective order filed by you, the Circuit Court has stayed your deposition pending further order of court and ordered you to obtain an opinion from this Committee as to your duty of confidentiality towards your former client.
As a result, you have inquired as to your obligations under Rule 1.6 of the Rules of Professional Conduct. That section is entitled "Confidentiality of Information". Sub-section (a) sets forth the general rule as follows:
"(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 paragraph (b)."
Subsection (b) utilizes permissive language and provides that a lawyer may reveal information to the extent that the lawyer reasonably believes necessary for one of four purposes. That subsection states as follows:
"A lawyer may reveal such information to the extent the lawyer
reasonably believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests of property of another;
(2) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or 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 proceedings concerning the lawyer's representation of the client.
(4) to comply with these Rules, a court order or other law."
One of the comments to Rule 1.6 states as follows:
"The attorney-client privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, Rule 1.6(a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of the court or tribunal of competent jurisdiction requiring the lawyer to give information about the client."
Your inquiry indicates confusion as to whom you represented. At one point, you indicated that you represented an "estate." Another scenario involved your possible representation of the personal representative in his fiduciary capacity, while yet another raises possible representation of the personal representative "in his individual capacity." The Committee cannot determine for you the identity of your client. That issue is a matter of law and would require you to review any written retainer agreements which you may have reached. However, the Committee notes that in Maryland, an estate is not generally represented by an attorney. Rather, the Maryland statutory scheme utilizes a personal representative who holds fiduciary responsibilities and is under a general duty to settle and distribute the estate of the decedent in accordance with law. Section 7-40(x) of the Estates and Trusts Article authorizes a personal representative to employee "persons with special skills", such as an attorney to advise or assist the personal representative in performing administration duties. In such cases, an attorney owes a duty solely to the personal representative. E.g., Ferguson v. Cramer, 349 Md. 760, 770, 709 A.2d 1279, 1284 (1998).
It is the Committee's view that if you determine that your client was the "estate" or the Personal Representative solely in his fiduciary capacity; you are permitted to turn over documents, estate property, etc., to the successor personal representative. The Committee also believes that you may reveal information to the successor personal representative without violating Rule 1.6(a). However, if you determine that your representation included the former personal representative, in both his fiduciary and in his individual capacity; you are subject to the constraints of Rule 1.6(a).
Under the requisites of Rule 1.6(a), the general rule is that absent waiver by a client, an attorney must invoke the attorney-client privilege. However, Rule 1.6, Clause (2) provides permissive authority to an attorney to reveal information to the extent that the lawyer reasonably believes necessary under limited circumstances. It is your obligation to review those discretionary criteria to determine if you would be able to reveal information for the reasons set forth in that subsection. Your attention is directed to Subsection b(2), clause dealing with rectifying the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used, and clause (4) regarding compliance with the rules, a court order, or other law. The Committee does not have sufficient information to assist you with respect to whether you have the discretionary authority to reveal information to rectify the consequences of a client's criminal or fraudulent act. Similarly, the Committee will not usurp the authority of the court in the pending proceedings to make its independent determination as to any obligations which you may have to testify and/or produce information. In reviewing this matter, you may wish to review Ethics Docket 93-33, as well as other opinions which may be obtained from the Committee's website, www.msba.org.
REFERENCES:
Ethics Opinions: Ethics Docket 1993-33