Can a law firm tell a bank that is the named executor about a client's assets, and can it represent that bank as executor after the client dies?

Plain-English summary

A firm was retained for estate planning and to draft a will. During the representation, the client disclosed that he owned a large amount of bearer bonds registered jointly with his wife and kept in a strongbox. The firm told the client the bonds would have to be reported in his gross estate; the client told the lawyers to forget about the bonds. The will was drawn and sent to a bank that was named sole executor. The bank, which might retain the firm as the executor's attorney, asked the firm for an inventory of the client's assets. The firm asked whether it should disclose the bonds in response to the bank's present request and, on the client's death, whether it should disclose them to the bank as executor or decline to represent the bank.

On the first question, the committee agreed that without written consent from the client the firm could not answer the bank's request. The client's present ownership of the bonds involved neither fraud nor a crime, so it was the firm's duty to preserve the client's confidences; absent consent, the firm should tell the bank that, on the client's instructions, it was not answering the request. On the second question, a majority concluded that if the client had not consented to full disclosure before death, the firm should not act as attorney for the executor and should not disclose the bonds to anyone unless a court of competent jurisdiction ordered it. The duty to preserve a client's confidences survives death, and the executor could not be represented without violating those confidences. Because the facts showed no present intention to defraud the government, the normal rule preserving confidences applied.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied DR 4-101 of the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.6 and 4-1.9 before relying on any specific requirement mentioned here.

Common questions

Q: Could the firm give the executor bank an inventory of the client's assets while the client was alive?

A: Under this opinion, not without the client's written consent. The committee held the bond ownership was a confidence the firm had to preserve because it involved neither fraud nor crime.

Q: Does the duty to keep a client's confidences end when the client dies?

A: No. The committee stated that the duty to preserve a client's confidences survives death.

Q: Could the firm represent the bank as executor after the client died?

A: A majority said no, if the client had not consented to full disclosure before death, because the firm could not represent the executor without violating the client's confidences, and it should not disclose the bonds unless a court ordered it.

Background and rules framework

The opinion applied DR 4-101 (preservation of client confidences and secrets) of the former Code of Professional Responsibility. In current Florida practice the confidentiality duty corresponds to Rule 4-1.6, and the duties owed after the representation ends, including after a client's death, are reflected in Rule 4-1.9; the Model Rule analogues are Rules 1.6 and 1.9.

Citations and references

Rules of Professional Conduct:

• CPR DR 4-101 (preservation of confidences and secrets)

See also

• FL Bar Ethics Op. 10-3: A Deceased Client's Confidential Information
• FL Bar Ethics Op. 85-2: Confidences of Natural Parents in a Private Adoption
• FL Bar Ethics Op. 76-47: Reporting Misconduct Learned From a Client Confidence

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-40/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-40-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 72-40
November 10, 1972
Advisory ethics opinions are not binding.
A law firm may not provide an inventory of a client's assets to a bank that is to be sole executor under the client's will unless the client gives written consent for such disclosure. Furthermore, if the client has not consented to a full disclosure prior to his death, the firm should not act as attorney for the executor and should not make any disclosure of the client's assets unless ordered to do so by a court of competent jurisdiction.
CPR: DR 4-101
Vice Chairman Daniels stated the opinion of the committee:
The inquiring firm was retained by a client for estate planning and to draft a will. During the representation the client disclosed that he owned a large amount of bearer bonds, registered jointly with his wife, and kept in a strongbox. The firm told the client that the bonds would have to be reported in his gross estate and the client told the lawyers to forget about the bonds. The will was drawn and sent to a bank which is sole executor under the will. The bank may seek to retain the firm as attorney for the executor. The bank has asked the firm for an inventory of the client's assets and the firm asks:

1. In response to the bank's present request, should the firm disclose the client's bond ownership; and
2. On the client's death should the disclosure be made to the bank as executor if the firm becomes attorney or should the firm decline to represent the bank as executor; and should the disclosure be made even if the firm ends up not representing the bank as executor?
   Answering No. 1 above, all Committee members agree that, absent written consent from the client, the firm cannot answer the bank's request. The client's present ownership of the bonds involves neither fraud nor a crime and, accordingly, it is the firm's duty to preserve the client's confidences. Absent the client's consent, the firm should inform the bank that, on instructions from the client, it was not answering the request.
   Answering No. 2 above, if the client has not consented to a full disclosure prior to his death, a majority of the Committee is of the opinion that the firm should not act as attorney for the client's executor and should not make any disclosure regarding the bonds to anyone unless ordered by a court of competent jurisdiction to do so. The duty to preserve a client's confidences survives his death and his executor could not be represented without violating such confidences.
   The facts, as stated in the inquiry, show no present intention of the client to defraud the government, hence, the normal rule regarding preservation of the client's confidences is applicable.