Can a lawyer disclose that a former client who is a personal representative may be breaching fiduciary duties to the estate?

Plain-English summary

The inquiry concerned a lawyer who formerly represented a personal representative and, after services were terminated, believed the former client had breached or intended to breach fiduciary duties to the estate. The committee concluded that RPC 1.6 prevents disclosure of the lawyer's concerns to the beneficiary unless the lawyer's belief that the personal representative intends to commit a crime or breach a fiduciary duty to the estate had a sufficient factual basis. In that case, RPC 1.6(b)(1) would allow disclosure of the concerns to the affected party. The committee added that the determination of a sufficient factual basis is an issue of law, based on the facts of the case, which the committee cannot determine.

The committee further concluded that the determination of a sufficient factual basis should be made before the lawyer discloses. It noted that the concerns could be disclosed to a tribunal under RPC 1.6(c), at an in camera hearing seeking guidance by the court, and that if the lawyer follows any guidance from the court regarding disclosure to the beneficiary, the lawyer would be in compliance with RPC 1.6.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.6, including its disclosure provisions and their lettering, was restructured in the 2006 revisions, so verify the current subsection references before relying on them.

Common questions

Q: Can a lawyer tell an estate beneficiary that the personal representative may be breaching fiduciary duties?

A: The committee concluded RPC 1.6 prevents disclosure unless the lawyer's belief has a sufficient factual basis, in which case RPC 1.6(b)(1) would allow disclosure to the affected party.

Q: Who decides whether the factual basis is sufficient?

A: The committee said that is an issue of law, based on the facts of the case, which the committee cannot determine, and that the determination should be made before disclosure.

Q: Is there a way to disclose with court protection?

A: The committee said the concerns could be disclosed to a tribunal under RPC 1.6(c) at an in camera hearing seeking the court's guidance, and that following the court's guidance would keep the lawyer in compliance with RPC 1.6.

Background and rules framework

The opinion applied Washington RPC 1.6 (confidentiality of information), corresponding to ABA Model Rule 1.6. The committee anchored the analysis in RPC 1.6's general prohibition on disclosure, the RPC 1.6(b)(1) exception permitting disclosure where the lawyer believes the client intends to commit a crime or breach a fiduciary duty on a sufficient factual basis, and RPC 1.6(c), which it described as allowing disclosure to a tribunal at an in camera hearing for the court's guidance.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6, 1.6(b)(1), 1.6(c)

See also

• WSBA Ethics Op. 1236: No Duty to Disclose Perjury
• WSBA Ethics Op. 1242: No Duty to Report Crimes
• WSBA Ethics Op. 1196: Keeping Client Secrets

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1042

Original opinion text

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

Advisory Opinion: 1849
Year Issued: 1998
RPC(s): RPC 1.6
Subject: Client confidences or secrets; lawyer formerly representing personal representative believes former client has or will breach fiduciary duties

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry #1849 concerning the clarification of duties to personal representative and residual legatee when lawyer services are terminated [and the lawyer believes the former client has breached or intends to breach his fiduciary duties to the estate].

The committee is of the opinion that RPC 1.6 prevents disclosure of your concerns to the beneficiary unless your belief that the personal representative intends to commit a crime or breach his fiduciary duty to the estate had sufficient factual bases. In that case, RPC 1.6(b)(1) would allow disclosure of your concerns to the affected party. However, the determination of a sufficient factual basis is an issue of law, based upon the facts of the case, which cannot be determined by the committee.

The committee is of the further opinion that the determination of a sufficient factual basis for your concerns should be made prior to disclosure by you. Your concerns could be disclosed to a tribunal under RPC 1.6(c), at an in camera hearing seeking guidance by the court, and if you follow any guidance from the court in regard to disclosure to the beneficiary, you would be in compliance with RPC 1.6.