Ethics Opinion 168

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #168 – 11/06/1970 (48-70)

Topic: Confidential Communications
Digest: Obligation of lawyer of executor-client misappropriating estate assets depends on whether restitution is made
Code: Canon 4; EC 4-1, 4-2, 4-4; DR 4-101(B) and (C); DR 7-102 (B) (1)

QUESTION

A lawyer is retained by an executor for an estate to handle the legal work involved in administering the estate. While preparing the accounting to be filed with the surrogate’s court, the lawyer discovers an apparent misappropriation of funds belonging to the estate. In response to questions from the lawyer, the executor admits the misappropriation. The lawyer advises the executor that he must reimburse the estate. The executor agrees to do so and makes full restitution before filing his accounting with the surrogate’s court. Now that restitution has been made, is the lawyer under any obligation to inform the surrogate of the executor’s wrongdoing?

OPINION

Once full restitution has been made, the obligation to preserve the confidences and secrets of the client, imposed by Canon 4, EC 4-1 and 4-4, and DR 4-101(B), precludes the lawyer from revealing the executor’s wrongdoing. A lawyer may properly disclose confidences and secrets of a client only under the mandate of a specific disciplinary rule, such as DR 7-102 (B) (1) [refusal to rectify a fraud], or in the circumstances specified in EC 4-2 [consent of client or required by law], and DR 4-101(C) [intention to commit a crime].

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