Can a lawyer give a client's will and trust to the client's power-of-attorney agent without the client's permission?

Plain-English summary

An attorney had prepared a trust and pour-over will for Mrs. Smith, an elderly but unquestionably competent client, who at the same time executed a broad durable power of attorney naming Mrs. Jones (a family friend and a trust beneficiary) as her attorney-in-fact. Mrs. Jones had been handling Mrs. Smith's affairs at her request, and now asked the attorney for a copy of the will and trust, citing the power of attorney, but admitted she had not asked Mrs. Smith's permission. The attorney asked, in four parts, what to do about the request and about later possible incompetence of either woman.

The committee distinguished the competent and incompetent scenarios. While Mrs. Smith was competent, Rule 1.6 governed: a lawyer shall not reveal information relating to the representation unless the client consents after consultation, and no exception exists for a client who has given a power of attorney. The attorney therefore had a duty to consult Mrs. Smith about Mrs. Jones's request and no duty to give Mrs. Jones any information, even to confirm the documents existed, until Mrs. Smith consented. If Mrs. Smith became incompetent, Rule 1.14 governed: the lawyer must maintain a normal client-lawyer relationship as far as possible and, where a legal representative has been appointed, ordinarily look to that representative for decisions. The committee declined to decide the substantive-law question whether the power of attorney made Mrs. Jones a "legal representative" under Rule 1.14, but advised that because degrees of incompetence vary, the lawyer should continue to maintain communication with Mrs. Smith insofar as possible even while dealing primarily with Mrs. Jones. Throughout, the committee stressed the lawyer represents Mrs. Smith and not Mrs. Jones, must always act in Mrs. Smith's best interest, and, if Mrs. Jones acts adversely to Mrs. Smith's interest, may have an obligation to correct or rectify the misconduct.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Can a lawyer give a competent client's will to her power-of-attorney agent on request?

A: No, not without the client's consent. The committee concluded Rule 1.6 bars disclosure absent the client's consent after consultation, with no exception for a client who has given a power of attorney.

Q: Must the lawyer tell the client about the agent's request?

A: Yes. The committee said the lawyer has a duty to consult the competent client about the agent's request and may not even confirm the documents exist until the client consents.

Q: What changes if the client becomes incompetent?

A: Rule 1.14 then applies. The committee said the lawyer is authorized to open the file to the agent absent prior contrary instructions, but still represents the client, must act in the client's best interest, and should keep communicating with the client as far as possible.

Background and rules framework

The opinion applied Rule 1.6 (confidentiality of information) and Rule 1.14 (client under a disability), which correspond to like-numbered Model Rules. Rule 1.6(a) bars disclosure absent client consent; Rule 1.14 directs the lawyer to maintain a normal relationship as far as possible and look to an appointed representative for decisions.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6(a) / Model Rule 1.6: a lawyer shall not reveal information relating to the representation unless the client consents after consultation.
• South Carolina RPC 1.14 / Model Rule 1.14: client under a disability; maintain a normal relationship as far as possible and look to an appointed representative for decisions.

See also

• SC Bar Ethics Op. 93-06: Conservator's Lawyer vs. the Ward
• SC Bar Ethics Op. 92-35: Releasing Escrow Checks to Another Bar
• SC Bar Ethics Op. 93-16: Reaching a Represented Party

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-04/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-04

Attorney recently drew up a trust agreement and pour-over will for Mrs. Smith, an elderly female client. AT the same time Mrs. Smith executed a durable general power of attorney, naming as her attorney-in-fact Mrs. Jones, a somewhat younger woman who is a long time friend of her family. This power of attorney authorized Mrs. Jones "To do and perform all and every act, deed, matter and thing whatsoever in about my estate, property, and affairs as fully and effectually to all intents and purposes as I might or could do in my own proper person if personally present...".

Mrs. Smith gave Mrs. Jones a copy of the power of attorney and told her that Mrs. Smith has revised her estate plan, but did not give details. Mrs. Jones is one of the beneficiaries of the trust.

Mrs. Smith, though in her early nineties and in frail health, is unquestionably mentally competent. She has been ill recently, and Mrs. Jones, at Mrs. Smith's request, has been handling her business, writing checks to pay bills, entering her safe deposit box, and so forth. The activities of Mrs. Jones have apparently been entirely proper.

Mrs. Jones has now asked Attorney for a copy of Mrs. Smith's will and trust agreement, citing as her authority the general power of attorney. Attorney asked her if she had Mrs. Smith's permission to receive this information. She said she had not asked Mrs. Smith for such permission.

Questions:

1. Should attorney give Mrs. Jones a copy of the will and trust agreement as she requests? If so, should attorney inform Mrs. Smith of her request and of Attorney's compliance?
2. If it would be improper for Attorney to give Mrs. Jones the information she requests, is Attorney obligated to inform Mrs. Smith that Mrs. Jones has made the request?
3. If Mrs. Jones becomes incompetent, should attorney open his file on Mrs. Smith to Mrs. Jones?
4. If Mrs. Smith becomes incompetent, may Attorney continue to serve as her Attorney if Mrs. Jones so requests? In the event, is Attorney's primary obligation to Mrs. Smith or to Mrs. Jones?

Summary:
The attorney should inform Mrs. Smith of Mrs. Jones request and should not provide Mrs. Jones with a copy of the will and trust agreement unless Mrs. Smith consents after consultation. If Mrs. Smith becomes incompetent, the Attorney is authorized to open his file to Mrs. Jones, absent prior instructions to the contrary by Mrs. Smith. He may thereafter continue to serve as an attorney for Mrs. Smith, bearing in mind that he is representing Mrs. Smith and not Mrs. Jones. The lawyer should attempt to continue to communicate directly with Mrs. Smith to the extent her disability will allow.

Opinion:
Two situations are described; one in which Mrs. Smith is competent, the other in which she is incompetent.

If she is competent, then Rule 1.6 dealing with confidentiality of information applies to the situation. Subsection (a) clearly provides that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation. No exception is made for the client who has given a Power of Attorney. Consequently, the attorney is under a duty to consult with Mrs. Smith concerning Mrs. Jones' request and is under no duty to provide any information to Mrs. Jones, even to acknowledge that a Will and Trust Agreement exists, unless and until Mrs. Smith consents after consultation with the attorney.

If Mrs. Smith is or becomes incompetent, then Rule 1.14, dealing with a client under a disability, would apply. Subsection (a) here provides that when a client's ability to make adequately considered decisions in connection with the representation is impaired, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. The comment makes clear that even if a person does have a legal representative, the lawyer should as far as possible accord the represented person the status of a client, particularly in maintaining communication.

It goes on to note that if a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. This committee does not issue opinions on substantive law and, even were the Power of Attorney supplied to the committee, would not determine whether the Power of Attorney itself constituted the attorney-in-fact a "legal representative" as such term is used in Rule 1.14. Since degrees of incompetence vary and may vary from time to time, it seems clear from Rule 1.14 that the attorney should continue at all times, insofar as possible, to maintain communication with Mrs. Smith, even though he may be dealing at some point primarily with Mrs. Jones.

The lawyer must bear in mind, however, that at all times he is representing Mrs. Smith and not Mrs. Jones and should always act in the best interest of Mrs. Smith, recognizing, as does the comment to Rule 1.14, that if he becomes aware that Mrs. Jones is acting adversely to interest to Mrs. Smith, he may have an obligation to correct or rectify Mrs. Jones' misconduct.