061120 NYEO, ETH 1194

Case DateJune 11, 2020
CourtNew York
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...

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