When a lawyer for an estate's co-administrators learns that a beneficiary stole estate funds and that one co-administrator may be implicated, must the lawyer tell the other co-administrator?
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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer represented two co-administrators of an estate, who were also two of the five beneficiaries. The lawyer learned that one beneficiary had stolen money from the estate and passed some of it to one of the co-administrators (Client A); Client A confirmed receiving the cash, but it was unclear whether he knew it had been taken wrongfully. The lawyer asked whether she should inform the other co-administrator (Client B) and the remaining beneficiaries.
The committee treated this as a joint-client confidentiality problem under Rule 1.7. It pointed to the Massachusetts Comments to that rule, which provided that, absent a special agreement, there was no confidentiality between joint clients, because the lawyer owed each an equal duty of loyalty and each was entitled to be told anything bearing on the representation. The committee observed that the Comment did not squarely resolve what happens when the lawyer had not explained the joint-client rule before the issue arose, and it concluded there was no single answer for that situation; the result turned on the circumstances and on whether other rules applied.
The committee then noted that Rule 1.6(b) might independently permit disclosure: paragraph (b)(1) allowed revealing confidences to prevent a crime or fraud likely to cause substantial financial injury, and paragraph (b)(3) allowed disclosure to rectify a client fraud in which the lawyer's services had been used. It also pointed to Rule 3.3(a), which could require disclosure to a tribunal to avoid assisting a client's fraud, given the co-administrators' accounting obligations to the Probate Court. Weighing these together, the committee concluded that the obligation owed to Client B trumped whatever confidentiality was owed to Client A, since Client B had a fiduciary duty to protect the estate that he could not discharge without knowing what the lawyer knew. Whether any further action regarding Client A was required or permitted would depend on the development of more facts about his knowledge and conduct.
Currency note
This opinion was issued in 1999, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: In a joint representation, could one client keep a secret from the other?
A: The committee explained that, under the Massachusetts Comments to Rule 1.7, the normal rule was no confidentiality between joint clients unless they agreed otherwise, because the lawyer owed each an equal duty of loyalty and each was entitled to be told anything bearing on the representation.
Q: What if the lawyer never explained the joint-client rule before the problem came up?
A: The committee found no single answer for that situation. It said the outcome would depend on the circumstances of each case and on whether other rules, such as Rule 1.6 or Rule 3.3, applied.
Q: Did any rule independently allow or require disclosure here?
A: The committee identified Rule 1.6(b)(1) and (b)(3), which could permit disclosure to prevent or rectify a financial crime or fraud, and Rule 3.3(a), which could require disclosure to the Probate Court if the lawyer concluded a client had committed a fraud on the court and would not correct it.
Background and rules framework
The opinion applied Mass. R. Prof. C. 1.4 (keeping a client reasonably informed), Mass. R. Prof. C. 1.7 (conflicts and the joint-client confidentiality principle in the Massachusetts Comments), Mass. R. Prof. C. 1.6 (confidentiality and its crime/fraud exceptions), and Mass. R. Prof. C. 3.3(a) (candor toward a tribunal, including the duty to avoid assisting a client's fraud). These corresponded to the Model Rules of the same numbers as they stood at the time. The committee also relied on its earlier Opinion 93-3, decided under the prior disciplinary rules.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.4 / Mass. R. Prof. C. 1.4 (communication; keeping the client informed)
- Model Rule 1.7 / Mass. R. Prof. C. 1.7 (conflicts; joint-client confidentiality per the Massachusetts Comments)
- Model Rule 1.6 / Mass. R. Prof. C. 1.6 (confidentiality; crime/fraud exceptions)
- Model Rule 3.3 / Mass. R. Prof. C. 3.3(a) (candor toward the tribunal)
Cases:
- Spinner v. Nutt, 417 Mass. 549 (1994) (a lawyer for an estate does not represent its beneficiaries)
- A v. B, 158 N.J. 51 (1999) (disclosure of confidences among jointly affected clients)
Other opinions cited:
- MBA Opinion 93-3 (lawyer for a fiduciary who discovers misappropriation of trust property)
See also
- MA Bar Ethics Op. 09-03: Joint-client disclosure over a client's objection
- MA Bar Ethics Op. 00-2: Witness payments and equal loyalty to former joint clients
Source
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