Is a Lawyer for the estate of an intestate decedent and for decedent’s two sons, who are his sole distributees, under a duty on his own initiative to inform the Department of Social Services that decedent Left substantial sums in “Totten Trust” savings bank accounts for the benefit of the sons, as well as a parcel of real estate having, little value, when the lawyer and the sons now know that decedent failed to divulge to any public agency that he owned such bank accounts and real estate although he resided for several years prior to his death in hospitals and nursing homes, at public expensed The lawyer did not represent decedent, and has not heretofore represented the sons.
The duty of a lawyer not to disclose information gained in a professional relationship applies not only to information which is ‘privileged” under the law, but also to other information that the client has requested be held inviolate or the disclosure of which would be embarrassing or likely to be detrimental to the client. DR 4-101. (A) (B).
The purpose of the Rule is stated in EC 4-1 as follow:
“Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system requite the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client, A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.”
An exception to this Rule is provided for in DR 4-101(C) (3) which states that a lawyer may reveal:
“3. The intention of his client to commit a crime and the information necessary to prevent the crime.”
The language of the Code here is only permissive and not mandatory. In ABA 314 (1965), it is stated that a lawyer has a duty of disclosure only if he possesses evidence indicating beyond a reasonable doubt that a crime will be committed, and mere suspicion of impropriety is not sufficient to justify disclosure.
A further exception to the Rule is provided for in DR 7-102(B)(1) which requires that a lawyer shall reveal a fraud which has in the course of the representation been perpetrated by a client.
On the instant facts, no fraud has as yet been perpetrated by the sons of the decedent because they are still in a position to advise the Department of Social Services of the true facts.
Whether failure to advise the Department constitutes a fraud or crime is a question of law upon which this Committee does not pass. However, irrespective of the answer to this question, it is the opinion of this Committee that the sons should inform the Department of Social Services of the moneys owned by the father at the time of his death.
Therefore, although the lawyer is not obligated to inform the Department of Social Services that the decedent left substantial sums in Totten Trusts, he should advise the sons to make such disclosure. See EC 8-5. If they are unwilling to do so and the lawyer believes that the failure to disclose such fact will constitute a fraud or crime, he should withdraw from further employment. DR 2-110(C)(l)(e). See, N.Y. County 560 (1968); N.Y. State 207 (1971).
October 10, 1973.