Skip Navigation

 
The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 72-40
November 10, 1972

A law firm may not provide an inventory of a client's assets to a bank that is to be sole executor under the client's will unless the client gives written consent for such disclosure. Furthermore, if the client has not consented to a full disclosure prior to his death, the firm should not act as attorney for the executor and should not make any disclosure of the client's assets unless ordered to do so by a court of competent jurisdiction.

CPR: DR 4-101

Vice Chairman Daniels stated the opinion of the committee:

The inquiring firm was retained by a client for estate planning and to draft a will. During the representation the client disclosed that he owned a large amount of bearer bonds, registered jointly with his wife, and kept in a strongbox. The firm told the client that the bonds would have to be reported in his gross estate and the client told the lawyers to forget about the bonds. The will was drawn and sent to a bank which is sole executor under the will. The bank may seek to retain the firm as attorney for the executor. The bank has asked the firm for an inventory of the client's assets and the firm asks:

1. In response to the bank's present request, should the firm disclose the client's bond ownership; and

2. On the client's death should the disclosure be made to the bank as executor if the firm becomes attorney or should the firm decline to represent the bank as executor; and should the disclosure be made even if the firm ends up not representing the bank as executor?

Answering No. 1 above, all Committee members agree that, absent written consent from the client, the firm cannot answer the bank's request. The client's present ownership of the bonds involves neither fraud nor a crime and, accordingly, it is the firm's duty to preserve the client's confidences. Absent the client's consent, the firm should inform the bank that, on instructions from the client, it was not answering the request.

Answering No. 2 above, if the client has not consented to a full disclosure prior to his death, a majority of the Committee is of the opinion that the firm should not act as attorney for the client's executor and should not make any disclosure regarding the bonds to anyone unless ordered by a court of competent jurisdiction to do so. The duty to preserve a client's confidences survives his death and his executor could not be represented without violating such confidences. The facts, as stated in the inquiry, show no present intention of the client to defraud the government, hence, the normal rule regarding preservation of the client's confidences is applicable.

[Revised: 08-24-2011]