After distributing an estate to two heirs, a lawyer learns of a third undisclosed heir; what must the lawyer do if the heir-clients will not correct it?

Plain-English summary

The inquiry concerned distribution of estate proceeds handled by probate by affidavit. The lawyer had been told the deceased had two heirs and, after paying the deceased's bills, distributed the funds to those two heirs in December 1988. Months later the lawyer learned from one heir that there was in fact a third heir not previously disclosed. That heir returned her portion, which the lawyer holds in trust; the other heir, who received the balance, did not respond to the lawyer's inquiry.

The committee was of the opinion that RPC 4.1(b) would require the lawyer to call on the clients to correct the apparent fraud committed on the third heir. If the clients refuse to correct the fraud or to authorize disclosure to the third party, RPC 1.6 forecloses the lawyer from disclosing it. In that event, the committee was of the opinion that the lawyer should advise the clients that the lawyer was depositing the funds with the registry of the court, advise all parties of that act, and withdraw.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: A lawyer distributed an estate, then learned of an omitted heir; what does the lawyer owe?

A: Under this 1989 opinion, the lawyer must call on the heir-clients to correct the apparent fraud on the omitted heir, per RPC 4.1(b).

Q: Can the lawyer just tell the omitted heir what happened?

A: Not if the clients refuse to correct it or to authorize disclosure. The committee was of the opinion that RPC 1.6 then forecloses disclosure.

Q: What does the lawyer do with the returned funds if the clients will not act?

A: The committee was of the opinion that the lawyer should advise the clients of, then deposit the funds with the registry of the court, notify all parties of that act, and withdraw.

Background and rules framework

RPC 4.1(b), Washington's version of ABA Model Rule 4.1(b), addresses a lawyer's duty regarding a client's fraud, and RPC 1.6 protects client confidences and secrets. The committee read them together: the lawyer must urge the clients to correct the fraud, but absent the clients' correction or consent, confidentiality bars the lawyer from disclosing it, leaving deposit of the funds with the court and withdrawal as the committee's prescribed course.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.1 (truthfulness in statements to others; client fraud)
• ABA Model Rule 1.6 (confidentiality of information)
• Washington RPC 4.1(b) and RPC 1.6

See also

• WA Ethics Op. 1294: Disclosing a Client's Cured Fraud
• WA Ethics Op. 1316: Insurance-Defense Counsel and a Coverage-Defeating Secret

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=402

Original opinion text

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

The Committee understood the facts of your inquiry to concern distribution of proceeds of an estate which was handled by probate by affidavit. You were advised that the deceased had two heirs, and after paying bills owed by the deceased, you distributed the funds to the two heirs in December 1988. A few months later you learned from one of those heirs that there was in fact a third heir of whom you had not previously been advised. She returned her portion of the proceeds to you, and you hold those in your trust account. The other heir who received the balance of the funds has not responded to your inquiry to him. The Committee was of the opinion that RPC 4.1(b) would require you to call upon your clients to correct the apparent fraud which has been committed upon the third heir. If your clients refuse to correct the fraud or refuse to authorize you to disclose it to the third party, then you would be foreclosed from such disclosure by Rule 1.6 and, in the opinion of the Committee, you should advise your clients that you were depositing the funds with the registry of the Court, advising all parties of your act, and withdraw.