Where There’s A Will

The New Jersey Disciplinary Review Board has issued a letter of admonition to an attorney who had violated client confidentiality by sending a copy of the client’s will to her son without authorization

Specifically, in 2012, you prepared a last will and testament for your client, Phyllis Walker, who had at least two sons, Brian and Thomas Walker, and at least one daughter, Shelia Greenberg. On January 19, 2012, Phyllis executed the will, retained possession of the original, and allowed you, per your practice, to retain a copy of the will. Nearly six years later, in late 2017, you prepared a revised will on Phyllis’s behalf and, on December 21, 2017, Phyllis executed the revised will, retained possession of the original, and again allowed you to retain a copy.

More than four years later, on February 21, 2022, Brian sent you an email, via your law firm’s online messaging portal, identifying himself as Phyllis’s son and requesting a copy of her will. Based solely on Brian’s request, you directed your office staff to confirm Brian’s contact information and to send him a copy of Phyllis’s 2017 will. As you conceded during the ethics proceedings below, you violated RPC 1.6(a) by providing Phyllis’s will to her son without her express, informed consent. Moreover, at the time you released Phyllis’s will to Brian, the will was not a public document and, thus, Phyllis was free to amend or revoke that inoperable instrument. See Michaels v. Donato, 4 N.J. Super. 570, 573 (Ch. Div. 1949) (prior to the death of the testator, a will constitutes a “revocable” and “inoperative” document that does not “create a property interest in the beneficiary”). By releasing Phyllis’s private estate planning document to a member of her family, without consent, you improperly divulged confidential information relating to the representation of your client, resulting in a dispute among Phyllis’s children concerning the terms of her will.

The board rejected the charge that the attorney failed to have measures in place to prevent such breaches

the record before the Board was devoid of any evidence that you failed to implement reasonable safeguards to prevent the inadvertent or unauthorized disclosure of information relating to your representation of Phyllis or your clients in general. Rather, your improper disclosure of Phyllis’s will appeared to have resulted from an isolated decision rather than an indication that you operated your law practice without implementing the appropriate safeguards to protect client information.

(Mike Frisch)