State Bar Association
Topic: Confidential client
Digest: The New
York Rules of Professional Conduct do not require a lawyer to communicate with
an individual who is neither a client in the matter nor a party to a document
drafted by the lawyer in the matter.
Rules: Rules 1.4, 1.6, 1.9(c), 4.1, 4.2, 4.3 and 4.4.
inquirer drafted a will in which the testator disinherited one of his
sons. The disinherited son contacted the
inquirer and asked her to confirm that she drafted the will, of which the son
has a copy. The lawyer’s signature is on
the will. The inquirer asks whether she
has an obligation to respond to her former client’s son, who is neither an
executor nor a beneficiary.
a lawyer respond to a query from an individual who is neither a client in the
matter nor a party to the document that is the subject of the query?
of the lawyer’s principal obligations under the New York Rules of Professional
Conduct (the “Rules”) when representing a client is to maintain the client’s
confidential information – information gained in or relating to the
representation that is protected by the attorney-client privilege, or the
disclosure of which would be embarrassing or detrimental to the client or that
the client has asked to be maintained in confidence. See Rule 1.6. Although information that is generally known
in the local community is not protected as confidential information,
information is not “generally known” simply because it is in the public domain
or available in a public file. See
Rule 1.6, Cmt. . The lawyer is also
prohibited from using or revealing the confidential information of a former
client that is protected by Rule 1.6, except to the extent the Rules would
permit with respect to a current client.
Rule 1.9(c). A deceased client is
by definition a former client.
rules in the New York Rules of Professional Conduct (“the Rules”) directly
address a lawyer’s obligations and limitations regarding communications with
others.1 For example, Rule 1.4 (“Communication”) sets
out a lawyer’s obligations concerning communicating with clients. It contains a robust list of requirements,
but they are limited to communications with clients. Rule 4.2 (“Communication with Person
Represented by Counsel”) strictly limits the situations in which a lawyer may
communicate with represented individuals, but it contains no affirmative
obligation to communicate with them.
Rule 4.3 (“Communicating with Unrepresented Parties”) limits, under
specified circumstances, a lawyer’s authority to provide legal advice to
unrepresented individuals and it prohibits a lawyer, who is communicating with
an individual on behalf of a client, from stating or implying that a lawyer is
a disinterested party. Again, this rule
establishes no affirmative obligation to communicate. Rule 4.1, which expressly applies to
communications with “third parties,” also establishes no obligation to
communicate; instead, it simply requires a lawyer who represents a party to
refrain from “knowingly making a false statement of fact or law” when
communicating with a third party. Rule
4.4 (“Respect for Rights of Third Persons”) limits a lawyer’s authority to
embarrass, harm or violate the rights of third parties, and it creates a very
narrow communicative obligation – i.e., a lawyer who “receives a
document relating to the representation of the lawyer’s client and knows or
reasonably should know that the document was inadvertently sent shall promptly
notify the sender.”
the above survey of the Rules regarding communications makes clear is that,
absent two narrow exceptions -- dispelling a third party’s impression of a
lawyer’s disinterest and notifying a third party regarding receipt of a
misdelivered document -- a lawyer has no independent ethical obligation to
communicate with third parties.2
prior opinions are consistent with this reading of the Rules. Thus, in N.Y. State 833 (2009), we concluded
that a lawyer was not ethically required to respond to an unsolicited written
request for representation sent by a person in prison. Specifically, we held that no provision of
the Rules “imposes a general obligation upon a lawyer to promptly answer
unsolicited mail – or to answer at all.”
Id. More recently, in N.Y. State 1078 (2015), we
considered whether a lawyer was permitted, consistent with Rule 1.6
(“Confidentiality of Information”), to disclose to the son of a former client
that the lawyer did not draft a will for the deceased client. We concluded that, under limited
circumstances, the lawyer was permitted to disclose this information (i.e.,
when it advanced the best interests of the former client). Id.
Implicit in that conclusion was that the lawyer was not required to
share information with the son of the former client.
the disinherited son is not a client of the inquirer and is not a party to the
document drafted by the inquirer.3 Accordingly, as a survey of the relevant
rules makes clear and consistent with our holding in N.Y. State 833, the
inquirer has no ethical obligation to respond to the son’s query. Indeed, sharing the information would likely
not be in the client’s best interest and therefore would not be permitted by
New York Rules of Professional Conduct do not require a lawyer to respond to a
query – about a document previously drafted by the lawyer – from an individual
who is neither a client in the matter nor a party to the drafted document.
1The rules regarding
advertising and solicitation also relate to attorney communications, but they
are not pertinent to this inquiry.
2In 1998, the Office of Court Administration adopted
the New York State Standards of Civility, which set forth principles of
behavior to which the bar, the bench and court employees should aspire. They
are not intended as rules to be enforced by sanction or disciplinary action,
nor are they intended to supplement or modify the Rules of Professional
Conduct. The first section of these
Standards discusses the lawyer’s duties to other lawyers, litigants and
witnesses and Standard
IV in this section states that “A lawyer should promptly return phone calls and
answer correspondence reasonably requiring
a response.” 22 NYCRR Part 1200, app. at
IV (emphasis added). These standards by
their terms do not seem to apply here.
In any event, their applicability is beyond the purview of our
3We do not have occasion to
address what obligation, if any, the lawyer would have to respond to a query
from a party to the drafted document. See N.Y. State 833.