NYSBA 2015-12-16

Can a lawyer tell a deceased former client's son that the lawyer never drafted a will for the father and has no original will?

Short answer: Yes. The opinion concludes that the fact a lawyer did not draft a will and did not refer the client to other counsel is not 'confidential information' under Rule 1.6(a), and even if it were, disclosure to the son would be impliedly authorized to advance the deceased client's interests.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1078: Confirming to a former client's son that the lawyer drafted no will

Short answer: A lawyer may tell the son of a deceased former client that the lawyer never drafted a will for the father, never referred him to other counsel for one, and holds no original will, because that fact is not confidential information; even if it were, disclosure would be impliedly authorized to advance the client's interests.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A lawyer had represented a father and son years earlier. The son later reported that the father had died, that no estate proceeding had begun, and that he did not know whether his father left a will. He asked whether the lawyer had drafted a will for the father or referred him elsewhere for one. The lawyer's records showed no will drafted, no referral, and no original will in the closed file (¶¶ 1-2). The inquiry asked whether the lawyer may tell the son that, and whether the lawyer must first require proof of the father's death or the son's identity (¶¶ 3-4).

The committee analyzed the question under Rule 1.6(a), which bars knowingly revealing "confidential information," defined as information gained during or relating to a representation that is privileged, likely to be embarrassing or detrimental if disclosed, or that the client asked to be kept confidential (¶ 5). The committee concluded the requested information is not confidential information: whether or not it was "gained during or relating to" the representation, it is not protected by the attorney-client privilege (which protects communications, not non-communications), is not embarrassing or detrimental, and was not designated confidential by the client (¶ 6).

The committee added that even if the fact were confidential, Rule 1.6(a)(2) would allow disclosure that is impliedly authorized to advance the client's best interests and is reasonable, because telling the son could help bring the father's final wishes to light and spare the estate a futile search for a will (¶ 7). On the identity and death-certificate question, the committee said that because the information is not confidential the lawyer is not obligated to protect it, but as a matter of prudence the lawyer may choose to confirm the father's death and the son's identity; doing so is not mandatory under the Rules (¶ 8).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that confirming the absence of a drafted will is outside the duty of confidentiality, and gave a fallback ground (implied authorization) in case the information were treated as confidential. The committee was explicit that verifying the father's death or the son's identity is permitted as prudence but not required by the Rules; that observation tracks the opinion's own "may wish to" framing rather than a rule mandate.

Common questions

Q: Is the fact that a lawyer never drafted a will protected by confidentiality?

A: No. The opinion concludes the fact is not "confidential information" under Rule 1.6(a) because it is not privileged (privilege protects communications, not non-communications), not detrimental, and not designated confidential by the client (¶ 6).

Q: What if it were confidential?

A: The committee concluded disclosure would still be permitted under Rule 1.6(a)(2) as impliedly authorized to advance the client's interests, since it could help carry out the father's wishes and save the estate a futile will search (¶ 7).

Q: Must the lawyer verify the death or the son's identity first?

A: No. The committee said verification is not required by the Rules because the information is not confidential, though the lawyer may do so as a matter of prudence (¶ 8).

Background and rules framework

The opinion interprets New York Rules 1.6(a) (confidentiality, including the definition of confidential information and the implied-authorization path in 1.6(a)(2)) and the continuing duty to a former client under Rule 1.9(c), corresponding to ABA Model Rules 1.6 and 1.9. The analysis turns on the definition of "confidential information" and the privilege's limitation to communications.

Citations and references

Rules of Professional Conduct:

MR 1.6 / NY RPC 1.6(a), (a)(2) (confidentiality; definition; implied authorization)
MR 1.9 / NY RPC 1.9(c) (confidentiality owed to former clients)

Source

Landing page: https://nysba.org/ethics-opinion-1078/