Bar Counsel Notes: Client Confidentiality Issues

Attorney Y prepared a Will for his client (M) 10 years ago. M is still alive in a nursing home. M's daughter (D), the named Personal Representative in that Will, has now requested that Y provide her with the original of the Will. May Y do so?

Not without M's consent or an Order issued by the Probate Court. Under these facts, Y should take the position that M's Will is currently a confidential document under M.R. Prof. Conduct 1.6(a). As a result, absent Y's actual knowledge of the existence of an exception under either Rule 1.6(a) or 1.6(b), Y is prohibited from providing the original Will to or discussing its contents with D.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.