BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 2003-4

(Inquiry No. 701 )

Topics:
Preservation of Clients Confidences and Secrets and Attorney-Client Privilege as to Confidential Communications; Consent to Disclosure and Waiver of Privilege by Deceased Client’s Personal Representative; Validity of Informed Consent in Light of Executor’s Conflict of Interests; Lawyer’s Duty To Preserve Confidences and Secrets Pending Proof of Valid Waiver or Judicial Determination and Court Order Mandating Disclosure

Digest:
Whether a matrimonial lawyer may disclose a deceased client-wife’s confidences after her death under the Attorney-Client Privilege based on the husband’s waiver of the Privilege as her personal representative, presents a question of law; however, the Committee may answer the inquiry under the N. Y. Lawyer’s Code of Professional Responsibility DR 4-101. The attorney may not reveal a client’s confidences or secrets contrary to her directions, unless and until either ( a) the attorney is fully satisfied the husband has made a valid and fully informed knowing waiver of the Attorney-Client Privilege and similarly consents to disclosure of the client-wife’s secrets in his fiduciary capacity and wholly in the interests of his wife and her estate; or (b) in compliance with a judicial determination and a court order mandating such disclosure.

Code Sections Involved:
DR 4-101 (A), (B), (C)
EC 4-1, 4-2, 4-4, 4-5, 4-6, 4-7

Facts:
Client-Wife retained the Inquiring Attorney and her law firm in May to commence an action for a divorce against her Husband. The Wife advised the Attorney on numerous occasions she did not want her Husband to know about her plans for a divorce nor to serve him with any papers until after she had advised their children and they had finished their pending college semesters. The Client-Wife agreed that the action be commenced and an index number purchased, but apparently before that could be done, ten days later she suddenly died.

About one month later, the Husband requested the Attorney provide him with information concerning the legal representation, having learned of it from one of his Wife’s check stubs, showing her payment of a retainer fee. The Attorney informed the Husband that a sizable refund of the retainer would be made. The attorney also informed the husband through the husband’s attorney, representing him as executor of the Wife’s estate, that the attorney-client privilege would bar disclosure of any detailed information or communications between Attorney and Client-Wife concerning the representation.

The Inquiring Attorney requests our advice and guidance whether the attorney should comply with the request of the attorney for the Husband-Executor for an itemized billing of the charges incurred by the Client-Wife.

Issue:
Whether the Inquiring Attorney may disclose to the Client’s HusbandExecutor itemized billing information regarding the Attorney’s representation of the ClientWife in a proposed action for a divorce against the Husband, when the Wife specifically requested that her proposed action be kept confidential and secret from her Husband until after she had advised their children?

Determination:
No, not under these particular circumstances. Assuming that the detailed billing information requested contains the content of confidential communications or secrets gained in the legal representation of the Client-Wife by the Inquiring Attorney, the attorney may not disclose these confidences or secrets, unless and until either (a) the Inquiring Attorney is fully satisfied the Husband has made a valid and fully informed knowing waiver of the Attorney-Client Privilege and consents to disclosure of the Wife’s secrets in his fiduciary capacity and wholly in the interests of his Wife and her estate; or (b) in compliance with a judicial determination (presumably based on an in camera examination of the requested detailed billing information) and a court order mandating such disclosure.

Analysis:
But for the unique facts and circumstances outlined above, the question raised concerning the Attorney-Client Privilege (which is codified in CPLR § 4503 incorporating common-law precedents) could be easily answered. This committee does not usually answer questions of law, however, which may be determined by the attorneys and courts involved in the matter. Recent and authoritative judicial precedents, Mayorga v. Tate, 302 A.D.2d 11, 752 N.Y.S.2d 353 (2d Dept. 2002)(no further appeal taken), and Estate of Colby, 187 Misc.2d 695, 723 N.Y.S.2d 631 (Surr. Ct. N.Y. County, 2001), hold that the Privilege survives the client’s death or disability, and may be waived by the client’s personal representative (a court-appointed executor or administrator, or guardian) if and when acting in the interests of the decedent-client and his or her estate.

Nevertheless, the Inquiring Attorney poses questions arising under the N.Y. Code of Professional Responsibility, in this case DR 4-101. In addition, these facts are unique in that the Executor of the decedent-client’s estate is himself the person whom the Client particularly instructed the Attorney not to inform of her plan to dissolve the marriage until after the Client had informed her children, a plan upset by her sudden death.

Faced with these particular facts, the Inquiring Attorney must take guidance from basic principles set forth in Canon 4 of the New York Code of Professional Responsibility, Disciplinary Rule (DR) 4-101, subdivisions A, B, and C, and the relevant Ethical Considerations 4-1, 4-2, 4-4, 4-5, 4-6 and 4-7. These, in part, incorporate the statutory and common-law mandates of the Attorney-Client Privilege under CPLR 4503, but they go beyond protecting against disclosure of “confidential communications”, and also protect from disclosure “secrets” gained by the attorney in the legal representation, regardless of the source of the attorney’s knowledge of the Client’s secrets. See generally N.Y. McKinney’s Annot. Judiciary Law, DR 4-101, Practice Commentaries, by Patrick M. Conners (2003 Cum. Pocket Part, at 164-73); Simon’s NY. Code of Profossional Responsibility Annot. 384- 452 (2003 ed.).

Canon 4 of the New York Code provides: “A Lawyer Should Preserve the Confidences and Secrets of a Client”. Disciplinary Rule (DR) 4-101(A) defines “confidences” as “information protected by the attorney-client privilege under applicable law”, i.e., CPLR 4503, and “secrets” “refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client”.’ Therefore, it may be assumed from the facts stated above by the Inquiring Attorney that the itemized billing information requested by the Husband and his attorney would contain both “confidences” and “secrets” of the Client, including the simple fact that the Client-Wife was intending to commence an action for divorce against her Husband for reasons possibly disclosed in the Attorney’s files and draft legal papers. It is not clear from the stated facts (and possibly not even known to the Inquiring Attorney) whether the now deceased Client-Wife would now want this information to be publicly disclosed to her Husband and college-age children, particularly after her death.

Disciplinary Rule (DR) 4-1 01 (B), a rule promulgated by the New York courts and enforceable against all lawyers, mandates that except when permitted by subdivision C, a lawyer shall not knowingly reveal a confidence or secret of a client. Subdivision C provides certain stated exceptions as follows:

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.

4. Confidences or secrets necessary to establish or collect the lawyer’s fee or to defend the lawyer … against an accusation of wrongful conduct. (Emphasis supplied).

The Code’s Ethical Considerations explain and illuminate the above rule. EC 4-1 explains the rule’s rationale, in part, as follows:

Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ the lawyer. A client must feel free to discuss anything with his or her lawyer and a lawyer must be equally free to obtain information beyond that volunteered by the client. … The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of a client not only facilitates the full development of facts essential to proper representation of the client but also encourages non-lawyers to seek early legal assistance.

Likewise, EC 4-2 summarizes the exceptions to the rule quoted above:

The obligation to protect confidences and secrets obviously does not preclude a lawyer from revealing information when the client consents after full disclosure, when necessary to perform the lawyer’s professional employment, when permitted by a Disciplinary Rule, or when required by law. . . . A lawyer must always be sensitive to the rights and wishes of the client and act scrupulously in the making of decisions which may involve the disclosure of information obtained in the professional relationship . … (Emphasis added.)

EC 4-4 explains some differences between DR 4-101 and the Attorney-Client Privilege:

The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of the client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge!. . .. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client. (Emphasis added.)

EC 4-6 also explains that the Disciplinary Rule continues in effect after termination of the relationship, in this case terminated by the client’s death: The obligation to protect confidences and secrets of a client continues after the termination of employment. And EC 4-7 provides:

The lawyer’s exercise of discretion to disclose confidences and secrets requires consideration of a wide range of factors and should not be subject to reexamination …. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to the purpose.

Two years ago, writing about a factual situation in which an attorney withdrew from the representation in a probate proceeding after learning from confidential communications of a client’s intent to pursue an unlawful course of action, this Committee explained in NCBA Op. 01-07 (2001):

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.

See also NCBA Op. 03-1 (2003), which recently resolved a conflict between a permissive statutory provision that might permit disclosure and the mandatory language of Code DR 4- 101(B) in counseling nondisclosure, in favor of the latter.

Given the above guiding principles of Canon 4 and DR 4-101, the Inquiring attorney is not necessarily bound to defer to the Husband-Executor’ s legal authority to waive the Attorney-Client Privilege. First, it is advisable that the Inquiring Attorney determine that the Husband is in fact the lawfully appointed Executor of the Wife’s estate under her probated will. See Matter o/Weinberg, 189 A.D.2d 126, 135,517 N.Y.S.2d 474 (1st Dept. 1987), motion/or leave to appeal dismissed sub nom. Matter o/Beiny, 71 N.Y.2d 994 (1988). Second, we conclude that the concept of a client’s consent to disclosure under DR4-101(C)(I) should follow the above cited judicial precedents of Mayorga and Colby to include the disabled or deceased’s personal representative, see NCBA Op. 36/88 (the ethical obligation clearly survives the death of the client, and may be waived by the client’s personal representative); however, this is not the end of the analysis. Any waiver or consent must be fully informed as to the effect and consequences of any disclosure of the Client-Wife’s confidential communications and secrets, not only as they may be disclosed to the Husband, but also as disclosed to their children and other affected members of the Wife’s family. See Simon’s NY. Code o/Prof Resp. at 419 (2003 ed.); NYSBA Op. 716 (1999) (setting forth ethical obligations when attorney must reveal billing records to client’s insurer without disclosing confidences and secrets under DR 4-1 0 1 (C)( 1 ». Finally, it is unclear here whether the Executor-Husband, in requesting the Attorney’s detailed billing records, is acting to protect the estate and its beneficiaries, or to satisfy his own personal interests.

In these particular circumstances, the Inquiring Attorney may be advised first to determine whether the Executor-Husband would accept the requested itemized billing information edited to redact the content of any “confidential communications” or “secrets” imparted to the Attorney. This may help satisfy the Executor-Husband’s fiduciary duty to determine the proper and fair amount of the Attorney’s partially refunded retainer fee. The same could also be done in offering the Attorney’s written retainer agreement,2 redacted to omit the scope or purpose of the legal representation.3 It also seems important to the Committee that the Inquiring attorney, in the first instance, seek to avoid litigating any good faith dispute about the legitimate amount of the Attorney’s fee, in that such a dispute may, under DR 4-101(C)(4), quoted above, necessitate that the Attorney disclose the very information that the Client-Wife directed not to be disclosed.4

If the Attorney is unable to fulfill the Executor-Husband’ s desire to obtain detailed billing information without disclosure of the client-Wife’s confidences or secrets, and the Attorney is not satisfied that the Executor has made a proper and fully informed waiver and consent in the interests of the decedent and her estate, we concur with other bar association ethics committees, to the effect:

If the lawyer is not certain that he has a legal obligation to disclose otherwise confidential information, however, the lawyer should take available legal steps to seek clarification of the law before making disclosure. See, e.g., N. Y. State 645 (1992) (where it is uncertain whether lawyer who is member of town board must disclose client information under town’s ethics and disclosure law, lawyer must seek judicial determination before making such disclosure by, for example, commencing a declaratory judgment action or triggering legal action by filing a report with client confidences omitted) …..

Assn. of the Bar ofthe City of NY Op. 1997-2 (when attorney is compelled to reveal client child’s confidence or secret of child abuse allegations pursuant to law without child’s consent).

Refusing the request or responding with a redacted version of the Attorney’s detailed billing information may instigate the Executor-Husband to seek judicially ordered disclosure in the probate proceedings or in a related separate action. At such time the Inquiring Attorney will have a duty to present the relevant facts and issues under the Code to the Court for its determination, including, possibly, an in camera examination of the Attorney’s records and detailed billing information in unredacted form. If the court orders disclosure, the Inquiring Attorney may either comply with the order, which is permitted under DR 4-101(C)(2), or may (but is not obligated to do so) seek appellate review if appropriate in the circumstances.

[Approved by the Executive Committee on 6/10/03; approved by the Full Committee on 6/17/03]

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1 Thus, a secret may include information that an attorney obtained from third parties or public records, that the client may have instructed the attorney not to disclose to other persons. See EC 4-4, quoted below.

2 In domestic relations matters, the court rules require a written retainer agreement setting forth fee arrangements to be filed with the court and a copy provided to the client. 22 NYCRR § 1400.3

3 Any possible interest of the Executor-Husband in ascertaining the grounds and reasons for his wife’s contemplating divorce and her intentions with respect to his interest under her existing will would seem problematic in these circumstances, when the Executor-Husband is obviously so personally involved.

4 Attorney-client fee disputes are to be referred to mediation and fee arbitration procedures for domestic relations and other matters. 22 NYCRR Court Rules, Pt. 1220, and § 1400.7, and Rules of the Chief Administrator of the Courts, Pt. 137 Fee Dispute Resolution Program (which is optional for clients and mandatory for lawyers).