May a lawyer who drafted a couple's trust tell the beneficiaries that the surviving spouse, as trustee, misappropriated the trust assets, when the lawyer learned this from the successor trustee who consulted as a prospective client?
NY State Bar Ethics Opinion 1126: Confidentiality owed to a prospective client
Short answer: A lawyer who learned, from a person consulting as a prospective client, that a trustee misappropriated trust assets may not disclose that information to the disadvantaged beneficiaries. The prospective client is owed the same confidentiality a former client receives, and no exception to the duty applies.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York 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.
Plain-English summary
The inquirer drafted a joint revocable trust for a husband and wife. On the wife's death, her share was to fund a credit shelter trust for the husband's lifetime, then pass to her children from a prior marriage. The husband never funded the credit shelter trust; he took the assets in his own name for the benefit of his sister, effectively disinheriting the wife's children. After the husband died, his sister, named as successor trustee, called the inquirer and disclosed all this. The inquirer told the sister he could not represent her and asks whether he may or must tell the wife's children that the trust was not administered as written.
The committee assumes the sister was a "prospective client" under Rule 1.18(a), a person who consults a lawyer about possibly forming a relationship; nothing suggests she lacked a reasonable expectation that the lawyer would discuss representation. Under Rule 1.18(b), a lawyer who learns information from a prospective client may not use or reveal it, except as Rule 1.9 would allow for a former client. Rule 1.9(c) in turn bars using a former client's Rule 1.6 confidential information to that person's disadvantage. The information the sister shared is confidential under Rule 1.6: it may be privileged (if she reasonably believed she was represented) and, in any event, is likely embarrassing and detrimental to her interest as a beneficiary of the husband's estate.
The committee then checks the exceptions. The sister gave no informed consent; disclosure would not advance her best interests, so it is not impliedly authorized; and no Rule 1.6(b) exception fits, including the crime-prevention exception (whether her intended conduct is a crime is a legal question outside the committee's jurisdiction). The lawyer therefore may not disclose the information to the children. In a closing note the committee observes that the same information may also be confidential information of the former client (the husband), but that analysis is harder; even if his conduct was criminal it was a past crime, and the continuing-crime concept in Comment [6D] likely does not apply where the lawyer was not involved in the misuse.
In practice
Under this opinion, a New York lawyer who receives damaging information from someone consulting as a prospective client owes that person confidentiality under Rule 1.18(b), enforced through Rule 1.9 and Rule 1.6, even though no representation followed. The lawyer may not reveal the information to third parties (here, the disadvantaged trust beneficiaries) absent the prospective client's informed consent or a Rule 1.6(b) exception. The crime-prevention exception did not apply because whether the conduct was criminal, and whether any future conduct was planned, were unresolved questions of law and fact. The committee separately flagged, without deciding, that the information might also be the former client's confidential information.
Common questions
Q: Does a lawyer owe confidentiality to someone who consulted but never became a client?
A: Yes. Under Rule 1.18(b), a lawyer who learns information from a prospective client may not use or reveal it, to the same extent Rule 1.9 protects a former client's information (Opinion 1126).
Q: Can the lawyer warn beneficiaries that a trustee misappropriated trust assets?
A: Not on these facts. The information is confidential, the prospective client did not consent, and no Rule 1.6(b) exception applies, so the lawyer may not disclose it to the beneficiaries.
Q: Does the crime-prevention exception let the lawyer speak up?
A: No. Whether the trustee's conduct was a crime, and whether any future crime was intended, are questions of law and fact beyond the committee's jurisdiction, so Rule 1.6(b)(2) does not authorize disclosure here.
Background and rules framework
The opinion applies Rule 1.18 (Model Rule 1.18) on duties to prospective clients, which channels through Rule 1.9 (Model Rule 1.9) on former-client duties and Rule 1.6 (Model Rule 1.6) on confidential information. Rule 1.6 defines confidential information to include privileged information, information likely to be embarrassing or detrimental, and information the client asked to keep confidential; Rule 1.0(j) defines informed consent.
Citations and references
Rules of Professional Conduct:
- New York Rule 1.18(a), (b) (Model Rule 1.18): duties to a prospective client
- New York Rule 1.9(a), (c) (Model Rule 1.9): use of a former client's information
- New York Rule 1.6(a), (b) (Model Rule 1.6): confidential information and exceptions
- New York Rule 1.0(j): informed consent
Other opinions cited:
- N.Y. State 970 (2013): whether an executrix is legally entitled to a former client's files
See also
- NY State Bar Op. 1125: No duty to respond to a former client's disinherited son
- NY State Bar Op. 1194: Estate lawyer, beneficiaries, withdrawal, and fraud disclosure
- NY State Bar Op. 1140: Representing a testifying expert witness
Source
- Landing page: https://nysba.org/ethics-opinion-1126/