Can a lawyer advise a client to destroy a contract not to revoke a will, and can the firm later probate the estate while bound to keep the deceased client's confidences?

Plain-English summary

Opinion E-82-14 arose from a husband and wife who executed mutual wills and a written contract not to change them. After the husband died and his estate closed (with no reference to the contract), the surviving wife had Law Firm B draft a new will disposing of her property differently. The wife did not appreciate the significance of the contract, and only the wife and the attorneys in Law Firms A and B knew of it. The firm anticipated that, after the wife's death, the corporate personal representative would suggest the beneficiaries employ Law Firm B to probate the estate. The committee answered three questions.

On Question 1, it was impermissible for the attorney to advise the wife to destroy the contract. The committee cited the rules barring suppression of evidence a lawyer or client is legally obligated to produce (SCR 20.43(1), 20.34(3)(i), 20.36(1)(c)) and Wis. Stat. sec. 856.05 on submitting information about a will. Because a question existed whether the contract had to be produced, the attorney should advise the client not to destroy it, even though the attorney could not reveal it because of the attorney-client privilege (SCR 20.21, 20.22); destruction could prejudice beneficiaries, interfere with the administration of justice, and be considered a fraud on the court, and while a lawyer need not disclose a client's completed fraud, the lawyer may not counsel such an act (SCR 20.36(2)).

On Question 2, neither the firm nor its members may accept employment as attorneys for the estate at the corporate fiduciary's request, because of the possible conflict of interest and the likelihood that firm members would be called as witnesses on the contract's terms. The duty to preserve a client's confidences continues after death unless consented to, ordered, or waived (SCR 20.21(6), 20.22), and extends to the firm (SCR 20.22(3)). As estate attorneys the firm's duties (contesting claims, meeting deadlines under Wis. Stat. secs. 857.03, 856.09) would directly conflict with preserving the deceased client's secrets, and the lawyer-as-witness bar (SCR 20.24(2)) would apply.

On Question 3, if the firm does not represent the corporate fiduciary, it has no affirmative duty to the fiduciary or the court to reveal knowledge of the contract; the attorney's only loyalty is to the client, and no exception in SCR 20.22 applies. The committee concluded the attorney should not counsel destruction of the contract and the firm should not accept the estate employment.

Currency note

This opinion was issued in 1982, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code (SCR 20.21, 20.22, 20.24, 20.36, 20.43). Confidentiality is now governed by SCR 20:1.6 / Model Rule 1.6, suppression of evidence by SCR 20:3.4 / Model Rule 3.4, and the lawyer-as-witness rule by SCR 20:3.7 / Model Rule 3.7. Subsequent rule amendments or later opinions may have changed the analysis. 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 advise the client to destroy the contract not to revoke her will?

A: No. The committee held that advising destruction was impermissible, as it would suppress evidence possibly required by law, interfere with the administration of justice, and could be a fraud on the court.

Q: Could the firm later represent the estate's corporate fiduciary?

A: No. The committee found the firm could not, because of the conflict between the duty to preserve the deceased client's confidences and the estate's interests, and because firm members would likely be called as witnesses.

Q: Did the duty of confidentiality end when the client died?

A: No. The committee held the duty to preserve a client's confidences continues after death, unless consented to, ordered by a court, or waived, and extends to the lawyer's firm.

Q: If the firm declined the estate work, did it have to disclose the contract?

A: No. The committee concluded the firm had no affirmative duty to the fiduciary or the court to reveal its knowledge of the contract.

Background and rules framework

The opinion interpreted the former Code's confidentiality provisions (SCR 20.21, 20.22), the bar on suppressing evidence and false statements (SCR 20.43(1), 20.34(3)(i), 20.36), and the lawyer-as-witness rule (SCR 20.24(2)), together with the probate statutes (Wis. Stat. secs. 856.05, 856.09, 856.31, 857.03). These now correspond to SCR 20:1.6, 20:3.4, and 20:3.7 / Model Rules 1.6, 3.4, and 3.7.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.21, 20.22 / Model Rule 1.6 (confidences and secrets; duty continues after death) (former Code provisions)
• Wis. SCR 20.43(1), 20.34(3)(i), 20.36 / Model Rule 3.4 (no suppression of evidence; no false statements) (former Code provisions)
• Wis. SCR 20.24(2) / Model Rule 3.7 (lawyer as witness) (former Code provision)

Statutes:

• Wis. Stat. sec. 856.05 (duty to submit information about a will)
• Wis. Stat. secs. 856.09, 856.31, 857.03 (estate deadlines; selection of estate counsel; powers of personal representative)

Other opinions cited:

• Wis. Formal Opinion E-77-5; ABA Formal Opinions 91, 341; ABA Informal Opinion 1293: confidences of a deceased client; waiver

See also

• WI Ethics Op. E-88-6: Lawyer as Witness on Behalf of a Client
• WI Ethics Op. E-88-10: Client Fraud Disclosure in a Real Estate Sale
• WI Ethics Op. E-83-7: Applying a Client's Funds Against Fees Owed

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-82-14.pdf