ETH 1194
Ethics Opinion 1194
New York Ethics Opinion
New York State Bar Association Committee on Professional Ethics
June 11, 2020
Topic:
Confidentiality of Information; Conduct before a Tribunal;
Withdrawal
Digest:
A lawyer who represents an executor has no ethical duty to
the estate’s beneficiaries. A lawyer may withdraw, or
seek permission to withdraw from a tribunal that requires
such permission, when the client ignores the lawyer’s
request to provide the lawyer with documents pertinent to the
representation or if the lawyer has a reasonable belief that
the client is engaging or has engaged in criminal conduct. A
lawyer who knows that a client intends to engage in criminal
or fraudulent conduct related to the proceeding “shall
take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.” Even if such disclosure is
not required, a lawyer may reveal confidential information to
the extent reasonably believed to be necessary to prevent the
client from committing a crime or to comply with law. A
lawyer representing an executor may donate a retainer fee to
the beneficiaries of the estate.
Rules:
Rules 1.0(i), 1.6, 1.16, 3.3(b)
FACTS
1. The
inquirer is a New York attorney who represents an executor in
the probate of an estate. The executor had managed the
decedent’s financial affairs and acted as the
decedent’s health care proxy during the
decedent’s later years. The decedent had no known
living relatives. The decedent’s estate, not
insubstantial, was bequeathed mostly to charities, but the
will made a modest gift to the executor.
2.
Months after a probate petition was filed, the inquirer
learned that the executor was the beneficiary of a
transfer-on-death designation -known to practitioners in the
field as a “TOD designation” - of a significant
sum. Before the inquirer learned of this fact, the executor
had presented the decedent’s death certificate to the
institution handling the decedent’s account and
arranged the transfer of the TOD designation sums to the
executor’s account. The TOD designation was created
after the will’s execution, and so, but for the
superseding TOD designation, the inquirer believes that the
assets would likely have been distributed to the
decedent’s charitable beneficiaries. Thus, we are told,
the size of the beneficiaries’ inheritance likely
depends on the legitimacy of the TOD designation.
3.
According to the inquirer, the executor gave the inquirer
varying, conflicting explanations about the reason for, and
circumstances of, the TOD designation. The inquirer says that
the TOD designation could have been accomplished without the
involvement of an attorney or any witnesses, thus insulating
the transaction from any meaningful scrutiny. The inquirer
says that the executor has repeatedly refused the
inquirer’s requests to provide copies of the TOD
designation, and continues to do so, which heightens the
inquirer’s concern about its legitimacy.
4. The...