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.
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