BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 2001-07

(Inquiry No. )

Topics:
The circumstances under which “confidences” and “secrets” of clients are to be revealed.
Digest:
Where, prior to the commencement of any court proceedings, the attorneys (“the Firm”), client and client’s group sever the professional relationship because they intend to pursue an illegal course of action, what is the obligation of the Firm with respect to information disclosed during the course of such representation, which information is “confidential” and/or “secret,” and to whom, if anyone, is the Firm mandated to disclose such information.
Code Provisions:
DR 4-101 (C)
DR 1-102
DR 7-102 (A) and (B)(2)
Facts Presented:
Client and client’s whole blood siblings met with and retained the Firm to handle the administration of the estate of the sole surviving parent of the client and client’s whole blood siblings’. The client and client’s whole blood siblings were distributees of the decedent, who had no surviving spouse. The decedent died intestate. Client, by agreement, with the whole blood siblings was to be the administrator. During the course of the Firm’s investigation, client and client’s siblings of the whole blood admitted that there was another sibling of the halfblood who had been adopted by decedent’s spouse. The Firm correctly advised client and client’s whole blood siblings that the half-blood sibling (identified as a son) was a distributee and entitled to a distributive share of the decedent’s estate, unless such son was willing to or had renounced or waived his right to share in the estate of the decedent Client and client’s whole blood siblings all took the position that the half-blood son was not to share in the decedent’s estate, and that the proceedings to be instituted in Surrogate’s Court were to omit him as a distributee; further, all of them were in accord and were not going to disclose the existence of this distributee in the petition for letters of administration or to the court.

Notwithstanding the Firm’s attempt to dissuade them from this course of action, and the Firm’s advice to them of both the criminal and civil penalties, they remained adamant in their position. As a result the Firm withdrew. Subsequently, the Firm received a letter from client directing the Firm not to disclose any information.

Apparently, the name, address and other relevant information regarding the distributee of the half-blood necessary to an administration petition in Surrogate’s Court had been disclosed to the Firm. Consideration of the ethical and legal issues
relevant to the rights and remedies of this distributee if the estate was distributed as proposed by the client and client’s group is not germane to this discussion. The Firm properly withdrew from the case.
Inquiry:
Determination:
Analysis:
In view of the refusal by the client’s group to change their position and the written demand of the now former client, no further communication from the Firm to the former clients is necessary.

Pursuant to DR 4-101 (C), a lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of a client to commit a crime and the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or collect the lawyer’s fee or to defend the lawyer or his or her employees or associates against the accusation of wrongful conduct.
(5) Confidences or secrets to the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.

A lawyer may not reveal a client confidence or secret except under the very limited circumstances described above in DR 4-101(C). Under the facts presented, the information the Firm obtained was gained in a professional relationship, during the course of representation and is information protected by the attorney-client privilege.

The Firm has received information evidencing an intent of a former client to commit a crime. As such, the Firm possesses the information necessary to prevent a crime and therefore falls within DR 4-101(C)(3). Under DR 4-101(C)(3), lawyer may reveal a client’s intention to commit a future crime, but its not mandated to do so. Therefore, there is no affirmative burden placed upon the Firm to disclose.

The language of DR 4-101 (C) allows the attorney to exercise his or her discretion and does not require the lawyer to report the information but does permit the lawyer to do so DR 4-101 specifically uses the word “may” as opposed to “must” and does not impose a strict obligation on the attorney to reveal certain information gained during the course of the attorney-client relationship. The rules recognize a lawyer’s right to exercise discretion in determining whether or not to disclose client confidences and secrets.

DR 7-102(A) is inapplicable under the facts presented due to the fact that the Firm withdrew as counsel, no longer represents the client and is not assisting the client in fraudulent conduct. Additionally, the Firm is neither making a false statement of law, nor is the Firm required by law to disclose this information. The Firm learned of the information during the course of the representation, however they did not utilize such information in instituting a proceeding.

Furthermore, the Firm did not engage in any conduct involving fraud, misrepresentation or deceit. Upon learning of the former clients’ intent to conceal this information, the Firm tried to dissuade the former clients from filing a false Petition with the Court and advised them of both civil and criminal penalties. When the former clients refused to allow the Firm to commence the proceeding by filing a complete and truthful Petition, the Firm withdrew. The Firm took no action with respect to this information nor did they omit the information to the former client’s advantage when instituting a proceeding and therefore, DR 1-102 is inapplicable.

No proceeding has been instituted by the Firm. As such, no action has been taken and no fraud has been perpetrated on a tribunal by the client during the course of the Firm’s representation. DR 7-102(B)(2) is irrelevant to the inquiry presented.

Conclusion:

Therefore, under the facts presented, the Firm may reveal the information, but is under no obligation to disclose the information received from the former clients.