State Bar Association
information; prospective client
lawyer may not disclose a prospective client’s confidential information without
the informed consent of the prospective client or some other exception to the
Rules governing a lawyer’s duty of confidentiality.
Rules: 1.0(j), 1.6(a) &
(b), 1.9(a) & (c), 1.18(a) & (b)
inquirer jointly represented Husband and Wife in drafting a joint revocable
trust. The retainer agreement signed by
both clients provided that the lawyer could not withhold information from
trust agreement provided that (i) upon Wife’s death, her share of the trust
estate would be distributed to a credit shelter trust for the benefit of
Husband during his lifetime, and (ii) upon Husband’s death, the funds in the
credit shelter trust would be distributed to Wife’s children from a prior
marriage. After Wife died, Husband met
with the inquirer to review what needed to be done to administer the trusts,
but declined to retain the inquirer to assist him with the administration.
Husband died, and Husband’s sister (Sister), who is named in the trust
instrument as Husband’s successor trustee, contacted the inquirer. She disclosed that Husband did not fund the
credit shelter trust, but put those assets in his own name for the benefit of
Sister, effectively disinheriting Wife’s children.
inquirer informed Sister the inquirer cannot represent her in the
administration of the trust estate. The
inquirer asks whether he may or must advise Wife’s children that the trust
established by their mother has not been administered according to the trust
or must the lawyer disclose, to Wife’s children, who are the beneficiaries of a
trust, that their step-father, as trustee of the trust, did not adhere to the
provisions of the trust agreement and misappropriated trust property?
the inquiry does not state that Sister sought legal advice from the inquirer,
the clear implication of the inquirer’s informing Sister that the inquirer
could not represent her is that, at the time of the call from Sister to the
inquirer, Sister was a “prospective client” within the meaning of Rule 1.18(a)
of the New York Rules of Professional Conduct (the “Rules”), i.e. “a person who
consults with a lawyer about the possibility of forming a client-lawyer
relationship with respect to a matter.”
As Comment  to Rule 1.18 points out, whether a person who
communicates with a lawyer is a “prospective client” depends on, among other
things, whether that person is communicating unilaterally to the lawyer without
any reasonable expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship, and thus is not a
“prospective client.” Nothing in the
facts suggests the Sister did not have that reasonable expectation. Therefore, while the question whether Sister
is a prospective client is one of fact that is beyond the jurisdiction of this
Committee, the remainder of this opinion assumes that Sister was a prospective
Rule 1.18(b), the lawyer has confidentiality obligations to a prospective
client. Rule 1.18(b) provides:
Even when no client-lawyer relationship ensues, a lawyer who
has learned information from a prospective client shall not use or reveal that
information, except as Rule 1.9 would permit with respect to information of a
1.9(c) prohibits a lawyer from using confidential information of a former
client that is protected by Rule 1.6 to the disadvantage of the former client,
unless the Rules would permit or require disclosure with respect to a current
client. Thus, the effect of Rule 1.18(b)
is that the inquirer may not reveal or use the information provided by Sister
unless (i) Sister gives informed consent, confirmed in writing or (ii) the
disclosure is permitted by Rule 1.6(b).
Neither exception applies here.
to this inquiry are the Rules of Professional Conduct concerning confidential
client information. Under Rule 1.6,
confidential information “consists of information gained during or relating to
the representation of a client, whatever its source, that is (a) protected by
the attorney-client privilege, (b) likely to be embarrassing or detrimental to
the client if disclosed, or (c) information that the client has requested be
kept confidential.” See Rule 1.6(a).
Sister reasonably believed that the inquirer represented her as successor
trustee to Husband – which is a factual question that we cannot resolve – then
the information that she conveyed to the inquirer regarding Husband’s failure
to fulfill his obligations under the trust agreement may be protected by the
attorney-client privilege. In any event,
it is information that is likely to be embarrassing to Sister and detrimental
to her, to the extent it affects her right to assets as a beneficiary of
1.6(a) further provides:
A lawyer shall not knowingly reveal confidential
information, as defined by this Rule, or use such information to the
disadvantage of a client or for the advantage of the lawyer or a third person,
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is
impliedly authorized to advance the best interests of the client and is either
reasonable under the circumstances or customary in the professional community;
(3) the disclosure is
permitted by paragraph (b).
first two exceptions do not apply here.
The inquirer does not say that Sister has given informed consent to the
inquirer’s disclosure of the information to Wife’s children. Moreover, the disclosure will not advance the
best interests of Sister, and thus is not “impliedly authorized.” Accordingly, the inquirer may not disclose
the information unless disclosure is permitted by Rule 1.6(b).
of the exceptions in Rule 1.6(b) seems to apply here. For example, Rule 1.6(b)(2) allows for
disclosure to prevent the client from committing a crime. But it is not clear
what actions Sister intends to take or whether those actions would constitute a
crime (a question of law that is beyond the jurisdiction of this Committee to
the inquirer may not disclose the information learned from Sister to Wife’s
lawyer who assisted a married couple with establishing a trust must not
disclose information he learns about one spouse’s misappropriation of trust
assets, when he learns of the misappropriation from a successor trustee who was
seeking legal advice as a prospective client.
A lawyer may not disclose a prospective client’s confidential
information without the informed consent of the prospective client or some
other exception to the Rules governing a lawyer’s duty of confidentiality.
of the trust agreement and information that H did not fulfill his obligations
under the trust agreement may also be confidential information of the
inquirer’s former client, H. However,
analyzing the inquirer’s confidentiality obligations to H is more difficult
than analyzing the inquirer’s confidentiality obligations to S. H apparently waived confidentiality vis a
vis W. But it is not clear whether
anyone stands in W’s shoes in that regard and the answer to that question is
one of law that is beyond the jurisdiction of this Committee. Cf. N.Y.
State 970 (2013) (whether executrix for will of former client is entitled to
lawyer’s files of the former client’s matter depends on whether executrix is
legally entitled to the files).
Moreover, it is not clear that any of the exceptions to confidentiality
in Rule 1.6(b) would apply to H. Even if
H’s actions in failing to comply with the provisions of the trust were
criminal, they would constitute a past crime.
Although Comment [6D] to Rule 1.6 notes that some crimes are continuing
in nature, we think it is unlikely this provision applies given that the lawyer
was not involved with H’s misuse of the trust assets.