Bar Counsel Notes: Confidentiality of Information

Lawyer has several old original Wills that his now deceased law partner had drafted. Recently, a son of one of those testators has called the office, informing Lawyer that "dad is dying and wants me, his Power of Attorney, to obtain his Will." Lawyer has seen the Will and knows that son happens to be disinherited in that Will. Testator instead left everything to a niece. Does Lawyer have to release the original Will to son?

No, under these circumstances it is better to request/insist that son produce a court order requiring Lawyer to deliver original Will to him. The Maine Rules of Professional Conduct at issue here are 1.6 (confidentiality) and potentially 1.14 (client with diminished capacity). See also Professional Ethics Commission Opinion, #192.

*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.