If a client confides that the deceased testator left a surviving legal spouse with possible claims, can the lawyer keep that secret and still represent the client?

Plain-English summary

The committee called this one of the most difficult inquiries it had considered. Mr. X had married decades earlier; his wife became incompetent and was committed to an institution in another state, where she remained alive. Years later Mr. X began living with Mary as husband and wife, and together they accumulated a modest Florida estate, with title and accounts placed in Mary's name alone. Mr. X left a will leaving everything to Mary and died. Mary disclosed all of this to the inquiring lawyer, who had her file the will and then prepared a will for her. The lawyer asked whether he should disclose the legal wife's existence to the probate court, whether he should alert the legal wife to possible dower rights, whether he could handle a sale of the real estate without disclosing the latent title defect, and whether he could later represent Mary's personal representative without disclosing the surviving wife.

A majority of the committee answered all four questions in the negative. Although the lawyer could not violate the rule on confidential communications, a majority felt he could not act further for the client in any matter where the information might be relevant unless she allowed him to make appropriate disclosures. He could and should advise her of the basis and extent of any rights the legal widow might have, and of lawful methods for determining or settling those claims in the client's best interest. Some committeemen were concerned that, in filing the will, the lawyer might be obliged to advise the client to disclose the widow's name, and that a refusal could be tantamount to an announced intention to commit a fraud on the widow, which is not a confidence the lawyer is bound to respect.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canons 15, 16, 32, 37, and 41. The protection of client confidences is now governed by Rule 4-1.6 of the Rules Regulating The Florida Bar, and withdrawal from a representation by Rule 4-1.16 (Model Rules 1.6 and 1.16). Subsequent rule amendments or later opinions may have changed the analysis, including the modern treatment of the crime-fraud and disclosure exceptions. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer disclose the surviving legal wife to the probate court on his own?

A: No. A majority said the lawyer could not violate the rule on confidential communications by disclosing the information without the client's consent.

Q: Could the lawyer keep handling the estate and a property sale while keeping the secret?

A: A majority said no. He could not act further in any matter where the information might be relevant unless the client allowed him to make the appropriate disclosures.

Q: What could the lawyer do for the client?

A: He could and should advise her of the basis and extent of any rights the legal widow might have, and of lawful methods for determining or settling those claims in the client's best interest.

Background and rules framework

The opinion drew on former Canons 15, 16, 32, 37, and 41, which together addressed the limits of supporting a client's cause, restraining client improprieties, the lawyer's ultimate duty, client confidences, and the discovery of imposition or deception. The confidentiality duty is now Rule 4-1.6 of the Rules Regulating The Florida Bar, and the obligation to withdraw where continued representation would require improper conduct is addressed by Rule 4-1.16; the Model Rule analogues are Rules 1.6 and 1.16. The tension the committee identified was between protecting the confidence and not assisting a fraud on the surviving widow.

Citations and references

Rules of Professional Conduct:

• Canons 15, 16, 32, 37, 41 [Canons of Professional Ethics; see current Rules 4-1.6 and 4-1.16]

See also

• FL Bar Ethics Op. 65-54: Withholding Client Information From an Agency
• FL Bar Ethics Op. 68-31: Adoption Confidentiality and an Unpaid Bill

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-50/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-50.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 65-50
August 20, 1965
Advisory ethics opinions are not binding.
A lawyer who learns from his client, the sole beneficiary of a deceased testator's will, that the testator is survived by an institutionalized wife may not reveal the information to the probate court or anyone else without the client's consent. At the same time, the lawyer may not represent the client in any matter in which the information is relevant unless she authorizes disclosure of the information.
Canons: 15, 16, 32, 37, 41
Chairman Kittleson stated the opinion of the committee:
The inquiry at hand is one of the most difficult the Committee has considered. None of the possible answers is easy to give.
The circumstances presented are these. Many years ago, while still a young man, Mr. X was married in another state. After several years of marriage, his wife became insane and was committed to an institution in the other state, where she has remained, alive but incompetent. At the time of commitment, Mr. X had no significant assets. He made available such funds as he had for his wife's care, but had no contact or communication with her since her commitment, more than 35 years ago. Nearly 25 years ago, Mr. X began living with another woman, Mary, holding themselves out as man and wife, which they continued to do until his recent death. In all the years that Mr. X and Mary lived together, no communication of any kind came from Mr. X's legal wife or anyone acting in her behalf. While living together in Florida, Mr. X and Mary accumulated a modest estate through their joint efforts. They took title to Florida real estate in their joint names as husband and wife, but later executed deeds purporting to place title in Mary's name alone, where the apparent record title still stands. The cash that they accumulated was placed in accounts in Mary's name alone. Mr. X left a will bequeathing all his estate to Mary. No children were born either to Mr. X and his legal wife or to Mr. X and Mary. After Mr. X's death, Mary came to the lawyer who presents this inquiry for advice and disclosed the information set forth above. Upon his advice, she filed the will with the probate court, but no administrative proceedings have been started. He has since prepared a will for Mary, bequeathing her estate to certain of her relatives.
The questions are these:

1. Should the lawyer, without his client's consent, disclose to the probate court or anyone else information he has received from his client, Mary, concerning the existence of Mr. X's legal wife, who is living in another state?

2. Should he, without his client's consent, attempt to make the legal wife aware of possible dower rights in property which Mr. X once held with Mary and which Mary now holds and claims?

3. Can he represent Mary in the sale of the real estate mentioned above, without disclosing to the purchasers the possible latent title defect?

4. Can he (as Mary has requested him to do) represent her personal representative after her death, without disclosing to the probate court, and to any persons dealing with the estate property, that Mr. X left a legal wife surviving him in another state, who may have some claim to part of the property?
   A majority of the Committee would answer all questions in the negative. But even though the lawyer cannot violate the rule concerning attorney-client confidential communications, a majority feel that he cannot act further for his client in any matter where the information may be relevant unless she allows him to make appropriate disclosures. He can, and should, of course, advise her as to the basis and extent of any rights that Mr. X's legal widow may have in the property, and may advise her what legal and proper methods may be available for determining or settling these claims to the best interest of his client.
   Some of the committeemen are concerned that, in filing the will, the lawyer may be obligated to advise the client to disclose to the court the name of the decedent's legal widow, and that the client's refusal to do so may be tantamount to an announced intention to commit a crime, viz., a fraud upon the widow, which is not included within the client's confidences a lawyer is bound to respect, and which allows him to make such disclosures as may be necessary to protect those against whom the crime is threatened.
   The Canons of Professional Ethics that seem to bear on the problem, at least in part, are: 15, How Far a Lawyer May Go in Supporting a Client's Cause; 16, Restraining Clients from Improprieties; 32, The Lawyer's Duty in Its Last Analysis; 37, Confidences of a Client; and 41, Discovery of Imposition and Deception.