Can the lawyer who drafted an incompetent client's earlier will reveal its contents and the client's mental state to the client's son and guardian?

Plain-English summary

Several years earlier an attorney wrote a will for a client and acted as one of its witnesses. The client later executed a second will, prepared by another, and shortly afterward was given a ninety-day commitment to a hospital for the insane, with a son appointed guardian. Anticipating an attempt to probate the second will after the client's death, the son and guardian brought a proceeding to perpetuate testimony and contemplated deposing the attorney who prepared the first will about its execution, its contents, and the client's mental condition at the time. The question was whether that attorney should disclose those matters.

The Committee found the question troublesome but generally agreed that the information was a confidential communication, that the privilege of non-disclosure belonged to the testator during his lifetime to waive or assert, and that under Canon 34 the lawyer's duty to preserve confidences outlasts the employment. Because the client was non compos mentis and could not give the consent the lawyer would need to disclose, the lawyer should refuse. On whether the lawyer must refuse even if directed by the court, the Committee said that is a matter for the courts, but the majority was of the opinion that the attorney could not be compelled by the court to make the disclosures. The vote was 8-1.

Currency note

This opinion was issued in 1952, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; confidentiality is now addressed by ABA Model Rule 1.6 and duties to former clients by Model Rule 1.9, and the scope of the attorney-client privilege is a matter of evidence law. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the lawyer tell the son and guardian about the earlier will?

A: No. The Committee held the contents, circumstances, and the lawyer's view of the client's mental state were confidential and could not be disclosed (8-1).

Q: Why couldn't the incompetent client's guardian authorize disclosure?

A: The Committee treated the privilege as the testator's to waive; because the client was non compos mentis he could not give the consent the lawyer would need, so the lawyer had to refuse.

Q: Could a court order the lawyer to testify?

A: The Committee said that is for the courts to decide, but the majority's opinion was that the attorney could not be compelled by the court to make the disclosures.

Background and rules framework

The opinion interprets former Texas Canon 34 (confidences of a client), applied to a deposition sought from the lawyer who drew a now-incompetent client's earlier will. The modern analogs are ABA Model Rule 1.6 (confidentiality of information) and Model Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information), as the modern analog
• MR 1.9 (duties to former clients), as the modern analog
• Texas Canon 34 (confidences of a client)

See also

• TX Ethics Op. 105: Wiretap Information and Confidentiality
• TX Ethics Op. 71: Will Drafter as Executor or Beneficiary
• TX Ethics Op. 65: Firm Conflict Before a City Council

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-55/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_55.pdf

Original opinion text

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

QUESTION PRESENTED

Several years ago an attorney wrote a will for a client and acted as one of the witnesses to the will. Recently, this client executed another will prepared by another and shortly after the execution of the second will was, due to mental condition, given a ninety-day commitment to a hospital for the insane and a son appointed guardian. The son and guardian, anticipating an attempt to probate the second will upon the death of this client, is bringing a procedure to perpetuate testimony and contemplates the taking of the deposition of the attorney who prepared the first will concerning the circumstances of its execution, its contents and the attorney's opinion of the client's mental condition at the time of the execution of the first will.
Should the attorney who prepared the first will disclose to the parties involved the contents of such will, the circumstances of its execution and his opinion of the testator's mental condition?

18 Baylor L. Rev. 220 (1966)

CONFIDENCES OF A CLIENT - WILL
An attorney who writes a will for a client and acts as one of the witnesses to it, which client executes a second will by another and is subsequently declared non compos mentis, may not disclose to the client's son and guardian the circumstances of the execution of the first will, its contents and the attorney's opinion of the client's mental condition at the time of its execution. The attorney could not be compelled by the court to make the disclosures.

Canon 34.

This question has given the committee a great deal of trouble because of the many factors involved. It is generally agreed that the information sought from the attorney is information received by him as a confidential communication and that the privilege of non-disclosure is the privilege of the testator during testator's lifetime to be waived or asserted by the client rather than the attorney. It is generally agreed that it is the duty of the lawyer under 34 to preserve his client's confidence, which duty outlasts the lawyer's employment and that in this situation, because the client is non compos mentis and cannot give the consent the lawyer would need to make such disclosures, the lawyer should refuse to do so.

The next question presented is whether or not he should refuse to divulge same if so directed by the court. This is a matter for decision by the courts, but it is the opinion of the majority of the committee that the attorney could not be compelled by the court to make such disclosures. (8-1)

Tex. Comm. On Professional Ethics, Op. 55 (1952)