LEO: Attorney-Client Relationship  LE Op. 1296


Attorney-Client Relationship - Confidentiality - Disclosure - WilI

Contracts: Attorney Gaining Information Regarding

Destruction of Will by Surviving Spouse.


October 25, 1989


You have advised that in 1984 you represented a couple who were each

married for the second time, and who could not agree as to the disposal of

their property, all of which was jointly held with right of survivorship,

at the time of their deaths. Will contracts were executed by the parties

and you advise that you maintained no continuing relationship with the

couple. Upon the death of the husband, you were contacted by the wife who

was told she needed other counsel to advise her as to any future

willmaking. The wife called again some months later and told you she

needed to qualify as executor of her husband's estate in order to receive

her husband's asbestosis settlement benefits. At that time, the wife also

told you she had lost her husband's will. Subsequently, the woman's

daughter told you that her mother had indicated she had burned the will

contracts and then had gone to another attorney who drew up a will making

the daughter the beneficiary, in defiance of the provisions of the will

contract which would have left some property to the deceased husband's

children by a prior marriage. You indicate that you have no direct contact

with the mother.


You have asked that the Committee opine as to any duty you may have to

notify anyone of the destruction of the wills drawn under the will

contract, considering that you do not have any direct knowledge of any

such action. You have further asked about any duty owed by an attorney who

does have such personal knowledge, even if he did not draw the will.

Finally, if either attorney has such a duty, you have asked the Committee

to opine as to when that notification is required: presently or at the

mother's death.


The appropriate and controlling rules applicable to the facts you have

presented are DR:7-102(A)(3), which prohibits a lawyer from concealing

or knowingly failing to disclose that which he is required by law to

reveal; DR:7-102(A)(7), which prohibits a lawyer from counseling or

assisting his client in conduct that the lawyer knows to be illegal or

fraudulent; and DR:4-101(C)(3), which permits a lawyer to reveal

information which clearly establishes that his client has, in the course

of the representation, perpetrated upon a third party a fraud related to

the subject matter of the representation.


Whether a lawyer is required to notify anyone as to the possible

destruction of the wills drawn under a will contract is a legal question

beyond the purview of this Committee. Should there be a legal duty to make

such notification, clearly the lawyer's ethical responsibilities under

DR:7-102(A)(3) would not permit the lawyer to withhold the information.

The Committee is of the view, however, that the matter is not yet ripe

because the mother/wife/testator is still alive, her will has not yet

spoken, and any will she has is subject to modification until the time of

her death. Thus, the lawyer is subject to no ethical responsibility to

make any revelation regarding her actions. The Committee is of the opinion

that no lawyer may knowingly assist the mother/wife/testator in either

breaching the will contract or in destroying any material evidence; such

conduct would be improper as proscribed under DR:7-103(A)(7). The

Committee is of the further opinion that, absent a legal duty to make

disclosure, the permissive rather than mandatory nature of DR:4-101(C)(3)

would not require a lawyer to reveal the willful destruction of evidence

and any possible fraud on a third party as a result thereof. The Committee

directs your attention to the recent decision of the Virginia Supreme

Court regarding liability of an attorney, who drafted a will, to

beneficiaries of the will. (See Copenhaver v. Rogers, No. 880807 (4 VLW

309) (September 22, 1989) Finally, the provisions of DR:4-101(C)(3) may

not be applicable in the situation you describe as to your dealings with

the mother/wife/testator since that rule requires that any such fraud on a

third party have occurred "during the course of the representation" and

you have advised the Committee that you have no such ongoing relationship

with the individual.


Committee Opinion October 25, 1989