Trust, But Verify

The operative rule here is Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, which states:

(a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to:

(i) a person that the client has instructed is not to receive the information, or

(ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.

(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations.

(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.

(c) A lawyer may reveal confidential information:

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.(2) When the client consents after consultation.

(3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client.

(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client.

(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.

(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

(9) To secure legal advice about the lawyer’s compliance with these Rules.

(10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide.

(d) A lawyer also may reveal unprivileged client information.

(1) When impliedly authorized to do so in order to carry out the representation.

(2) When the lawyer has reason to believe it is necessary to do so in order to:

(i) carry out the representation effectively;

(ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct;

(iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

(e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act.

(f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b).

“Confidential Information” -- which includes both privileged attorney-client information and non-privileged confidential information as defined by Rule 1.05(a) – is generally and broadly prohibited from disclosure by attorneys to third parties by Rule 1.05(b), except for the specific examples delineated in Rule 1-05(c)-(f). Rule 1.05(c)(3) permits disclosure “[t]o the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client.”

Here, the client is not alive to provide any guidance to Sophia, and the client did not previously provide any information about his preferences. However, Ethics Opinion 697 (2023) found that a “client-designated executor” does qualify as a representative under Rule 1.05(3) under certain conditions:

When the confidential information does not relate to a matter that affects the estate or its administration, a lawyer has discretion to reveal client confidences to the executor unless the client instructed otherwise. A lawyer should not make a discretionary disclosure to an executor if the lawyer reasonably believes the client would have opposed the disclosure under the circumstances.

What could make a lawyer “reasonably believe” that the client would have opposed disclosure? The Opinion provides the example of an attorney revealing the existence of a “secret child from an extra-marital relationship.”

Here, while the client is not alive to provide any guidance to Sophia and did not previously provide any information about his preferences, there is no reason to believe that the client would have opposed the disclosure. Therefore, Sophia has the discretion to disclose the information if she chooses to do so. The correct response is C.