When can a lawyer disclose a decedent's estate information to the named beneficiaries without the current client's consent?

Plain-English summary

A lawyer had drafted a will for a decedent and later agreed to help the decedent's son probate it. The son was the residuary beneficiary and the decedent's next of kin. After learning that the estate's assets were less than the specific bequests (so the son would take nothing as residuary beneficiary), the son lost interest in the probate and stopped responding. The lawyer asked whether she could, or had to, tell the named legatees about the estate.

The opinion first treats the son as a client even though no fee was paid or contract signed, because an attorney-client relationship can be implied. It then sorts the pieces of information the lawyer holds. The fact of the death and the fact that no probate had been filed are "generally known" or readily obtainable from public records, so the lawyer may disclose them. By contrast, the financial advisor's refusal to serve as executor, and the fact that the estate's assets were too small to satisfy the specific bequests, are confidential under Rule 1.6 because the lawyer learned them only in the course of representing the son.

On the central question, the opinion concludes that Rule 1.6(a)'s "impliedly authorized" clause lets the lawyer, in her capacity as the decedent's former lawyer, inform the legatees of their beneficiary status so they can act to see the decedent's wishes carried out, even without the son's consent. The committee declined to opine on whether she had a fiduciary duty to act, noting that is a question of substantive law outside its remit. It also concluded that, under Rule 1.9, she could not represent the legatees in the probate without the son's informed consent, because the son is potentially adverse to them.

In practice

Under the Massachusetts rules as they stood at the time of the opinion, the analysis turns on whether information is "generally known" (Comment [5A] to Rule 1.6) or known only through the representation. The opinion holds that public facts such as the death and the absence of a probate filing may be disclosed, while facts learned solely in the representation may not.

The opinion separately holds that Rule 1.6(a)'s implied-authorization clause permits a former client's lawyer to inform will beneficiaries of their status to carry out the testator's plan, and that Rule 1.9 bars representing those beneficiaries against the interests of the current client without that client's informed consent.

Common questions

Q: Can a lawyer tell beneficiaries about a will if the client who hired her to probate it has gone silent?

A: The opinion concludes the lawyer may, as the decedent's former lawyer, inform the legatees of their beneficiary status under Rule 1.6(a)'s implied-authorization clause so they can take steps to carry out the decedent's wishes, even if the current client does not consent.

Q: Is the fact that someone died confidential information?

A: Per the opinion, public facts such as a death reported in an obituary are "generally known" under Comment [5A] to Rule 1.6 and may be disclosed; facts learned only in the representation, such as the estate's true value, remain confidential.

Q: Can the lawyer go on to represent the beneficiaries in the probate?

A: The opinion concludes she may not, absent the current client's informed consent, because under Rule 1.9 the beneficiaries' interests are potentially adverse to the former client in the same or a substantially related matter.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.6 (confidentiality of information), including the "generally known" gloss in Comment [5A] and the "impliedly authorized" clause of Rule 1.6(a), together with Rule 1.9 (duties to former clients). These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / Mass. R. Prof. C. 1.6 (confidentiality; "generally known" and implied-authorization provisions)
• MR 1.9 / Mass. R. Prof. C. 1.9 (duties to former clients)

Cases:

• Mailer v. Mailer, 390 Mass. 371 (1983), implied attorney-client relationship without a fee or written contract

See also

• MA Bar Ethics Op. 17-3: a deceased client's file and confidentiality
• MA Bar Ethics Op. 12-01: reporting duty versus Rule 1.6 confidentiality
• ABA Ethics Op. 471: surrendering papers and property to a former client

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2011-opinion-11-04/opinion-11-04