Does a lawyer have to respond to a query from the disinherited son of a deceased client, who is neither a client nor a party to the will, asking the lawyer to confirm she drafted it?

Plain-English summary

The inquirer drafted a will that disinherited one of the testator's sons. After the testator died, the disinherited son, who has a copy of the will bearing the lawyer's signature, contacted the inquirer and asked her to confirm she drafted it. The son is neither an executor nor a beneficiary. The lawyer asks whether she is obligated to respond.

The committee begins with the lawyer's confidentiality duty. Rule 1.6 protects information gained in the representation that is privileged, embarrassing or detrimental if disclosed, or that the client asked to keep confidential, and information is not "generally known" merely because it sits in a public file. Rule 1.9(c) extends the duty to former clients, and a deceased client is by definition a former client. The committee then surveys the Rules that govern communications with others, Rules 1.4, 4.1, 4.2, 4.3, and 4.4, and finds that none imposes an affirmative duty to communicate with a third party. The only two communicative obligations in this group are narrow: dispelling a third party's mistaken impression that the lawyer is disinterested (Rule 4.3), and notifying the sender of an inadvertently sent document (Rule 4.4).

Prior opinions agree. N.Y. State 833 (2009) held a lawyer need not answer unsolicited mail from a person in prison; N.Y. State 1078 (2015) held a lawyer was only permitted, not required, to tell a former client's son that the lawyer had not drafted a will. Applying this, the committee concludes the inquirer has no obligation to respond to the disinherited son, who is neither her client nor a party to the will. The committee adds that sharing the information would likely not serve the former client's best interest, so Rule 1.6(a) would not even permit it. A footnote flags the New York Standards of Civility (which aspire to prompt responses) but notes those standards are not enforceable Rules and are beyond the committee's purview.

In practice

Under this opinion, a New York lawyer is not required to answer a question about a document she prepared when it comes from a third party who is neither a client nor a party to that document. The Rules create no general duty to communicate with third parties; the only affirmative communicative duties are the narrow ones in Rule 4.3 (correcting a misimpression of disinterest) and Rule 4.4 (notifying the sender of a misdelivered document). The committee also noted that, on these facts, volunteering the information would not be in the deceased former client's interest and so would not be permitted under Rule 1.6(a). The committee did not address what obligation might exist toward a person who actually was a party to the document.

Common questions

Q: Does a lawyer have to answer questions from a deceased client's family member?

A: Not as a general matter. The Rules impose no affirmative duty to communicate with third parties who are neither clients in the matter nor parties to the document at issue (Opinion 1125 ¶¶ 4-7).

Q: Can the lawyer confirm she drafted the will if she wants to?

A: The opinion does not authorize it here. Disclosing the information would likely not serve the deceased former client's best interest, so Rule 1.6(a) would not permit the disclosure (¶ 7).

Q: Do the New York Standards of Civility require the lawyer to reply?

A: No. The committee notes those standards aspire to prompt responses but are not enforceable Rules of Professional Conduct, and their applicability is beyond its purview (¶ n.2).

Background and rules framework

The opinion applies Rule 1.6 (Model Rule 1.6) and Rule 1.9(c) (Model Rule 1.9) on confidentiality, including for deceased former clients, and surveys Rules 1.4, 4.1, 4.2, 4.3, and 4.4 (Model Rules 1.4 and 4.1 through 4.4) on communications, concluding none imposes a general duty to communicate with third parties.

Citations and references

Rules of Professional Conduct:

• New York Rule 1.6 (Model Rule 1.6): confidential information; not "generally known" merely because public
• New York Rule 1.9(c) (Model Rule 1.9): former-client information; a deceased client is a former client
• New York Rules 4.1, 4.2, 4.3, 4.4 (Model Rules 4.1 through 4.4): communications with third parties
• New York Rule 1.4 (Model Rule 1.4): communication duties run to clients

Other opinions cited:

• N.Y. State 833 (2009): no duty to answer unsolicited mail from a prisoner
• N.Y. State 1078 (2015): lawyer permitted, not required, to tell a former client's son about a will

See also

• NY State Bar Op. 1126: Confidentiality owed to a prospective client
• NY State Bar Op. 1124: Communicating with opposing counsel and the opposing party
• NY State Bar Op. 1140: Representing a testifying expert witness

Source

• Landing page: https://nysba.org/ethics-opinion-1125/