No Implied Authorization: Consent is Key to Discuss Intentions of Deceased Client’s Will in Colorado

The Colorado Bar Association Ethics Committee recently published an opinion finding that will-drafting attorneys cannot volunteer information about a deceased client’s intentions to their beneficiaries without the previous consent of the client or their agent. The opinion was published in response to the frequency with which will drafters receive questions about their client’s intentions from relatives who are disappointed in their bequest.

The opinion noted that a lawyer’s duty of confidentiality extends after a client’s death, as specifically reflected in Colorado Rule of Professional Conduct Rule 1.6(b) which does not  include a client’s death among the listed confidentiality. This notion of confidentiality is also upheld in The American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct.

The opinion also highlights that an attorney may reveal this information without violating Rule 1.6 if a court orders the disclosure. However, an attorney may not reveal information based upon the rationale that the client impliedly authorized the disclosure.

The committee also noted that there is currently a split of authority concerning whether a will-drafting attorney may ethically disclose information without authorization from the client or personal representative. The ultimate position adopted by the committee states that “simply retaining a lawyer to draft estate documents, without more, is not sufficient to constitute implied consent for the lawyer to voluntarily provide information protected by Rule 1.6.”

Learn about the Colorado Bar’s Ethic Opinion here and here.

Read the American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct here.

Is Avvo’s Referral Service Ethical? Florida May Add its Voice to the Chorus.

The New York State Bar Association recently joined other states that have found that the use of Avvo’s attorney referral service is impermissible as it violates the professional conduct rules that prohibit sharing fees with nonlawyers or paying a nonlawyer for a referral or recommendation. Avvo presents particular problems for the state bars as Avvo collects different fees depending upon the type of case that is referred to an attorney.

The Florida Bar’s Board of Governors is scheduled to consider programs like Avvo at a December 2017 meeting as part of an ongoing attempt to revise the attorney referral rules in Florida. The Florida Bar Rules currently prohibit attorneys from sharing fees with for profit referral companies.

Proposed Advisory Opinion 17-2, which has yet to be drafted, will address whether attorneys may participate in private lawyer referral services, including services such as Avvo. The Florida Bar has solicited comments from Florida Bar members, pursuant to Procedures 6(d) and (e) of The Florida Bar Procedures for Ruling on Questions of Ethics Comments may include issues to be considered, a proposed conclusion, or suggestions for additional types of fee arrangements. Comments will be considered at The Florida Bar’s Fall Meeting on October 13, 2017

To read The Florida Bar’s notice click here click here.

To read more about the other state opinions concerning Avvo check out the informative blog posts at The Professional Responsibility Blog and the Legal Ethics Alert Blogs here and here.