CI-564
October 2, 1980
SYLLABUS
A legal clinic which has drafted a will for a client should refuse to divulge the contents of that will to the children of the client and to the special conservator appointed for the client in the absence of the consent of the client unless the special conservator is specifically authorized by the order appointing him to obtain the will or unless he is appointed general guardian.
References: DR 4-101 (C).
TEXT
You indicated the following as the facts. Your Legal Aid Project opened a file in for a client who requested that you draft a will for him. The will was (apparently) excelled and your Clinic retained an unexecuted copy of it in your file.
Within the past few months you have received several calls from the children of your client requesting a copy of the will and you have refused to provide it based upon the lawyer-client privilege. A lawyer representing one of the children made a similar request, which you also declined.
The lawyer then cited to you Section 487 of the Probate Code (MCLA 700.487) and provided to you a protective order indicating that his client (one of the sons of your client) had been appointed special conservator for your client. Neither the lawyer nor the son has ever stated a reason for wishing to obtain the will and you indicate that the file does not include an inventory of assets.
You enclosed a copy of the order of the Probate court appointing the son "special conservator." The order empowered him to recover the personal effects of your client including a certain bankbook, other checking and savings accounts, insurance papers, and various other specifically named documents which had allegedly been removed without authority from the residence of your client by a third person. The order also requires the third person to return the documents improperly taken. You requested an opinion of the committee as to what action you should take in response to the most recent demand for the will.
Canon 4 entitled "A Lawyer Should Preserve the Confidence and Secrets of a Client" provides in relevant part (DR 4-101 (B)):
Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
The excepted section (DR 4-101(C)) provides:
A Lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
Section (1) does not apply because you have not received the consent of the client. Sections (3) and (4) similarly do not apply. The only question which remains is whether the order appointing the special conservator constitutes a "court order" within the meaning of Section (2).
The Michigan Revised Probate Code provides for the appointment of a guardian of a legally incapacitated person (See MCLA 700.443 and 700.444), with certain powers, which are delineated in MCLA 700.455.
An entirely separate procedure is established for the appointment of a conservator (MCLA 700.461). A conservator is limited in his authority to that authority granted by the court in its order appointing him special conservator. Special conservators are generally appointed for only one specific and limited purpose and do not possess the general powers of a guardian appointed under the other sections cited above.
While MCLA 700.487 (the section quoted to you) provides that a conservator may examine the will of the protected person it is also clear that the person referred to is actually a guardian and not a special conservator with limited authority. Such a special conservator does not have legal authority to obtain the will in the absence of specific authority in the order appointing him.
After carefully reviewing the order of the Probate Court forwarded to you by the lawyer for the special conservator it is apparent that the limited purpose of the special conservatorship was to obtain property of your client which was improperly removed from his residence by a third person and to maintain possession of the items improperly taken. The will is not included in the order either directly or by implication.
Therefore, it is the opinion of the undersigned that you should continue to refuse to divulge the contents of the will or to provide a copy of it in the absence of either the consent of your client (if he is mentally competent) or a court order specifically authorizing the special conservator to obtain a copy of the will.
Although this opinion has been prepared by the undersigned, it has been circulated to the other committee members for their concurrence prior to its release to you.