In a will contest, Maryland has a long standing rule that a scrivener may be called to testify in a will contest. In Benzinger v. Hemler, 134 Md. 581, 107 A. 335 (1919), the court held that the attorney engaged in the estate planning for a decedent may be called to testify and produce documents in a will dispute. In that case, the court stated that special considerations come into play for will contests. For example, it is implicit that the client would want the true circumstances of his or her testamentary disposition known to the trier of fact. Hence, if the estate planning documents were not discoverable, the client’s primary interest would not be protected. The court held that the purpose of a will contest is to determine whether or not a particular document reflected the final dispositional intent of the client. Therefore, there is no reasonable ground to conceal the discussions the client had with attorneys if those discussions would shed light on whether or not the client’s dispositional intent is truly reflected by the will. Indeed, the court asked rhetorically:
“If, therefore, the document produced is not actually his will, but rather that of another who induced him by undue influence over him to make it, can it be said that the deceased wants such a will established as his own? Would not the law in holding to such a policy (of permitting the attorney/client privilege to stand) foster that which it abhors, namely, deceit and fraud?…If a particular beneficiary obtained the bequest through duress, deceit, or undue influence over the mind of the testator, should such beneficiary be permitted to invoke this most salutary privilege against the real heir, and thus, perhaps, be enabled to conceal the very thing the law abhors, and for which it wisely requires the probate of all wills? Moreover, is the right to invoke the privilege to be given to one heir who proposes the will, and denied to the other who opposes it? The authorities cited above make it reasonable clear that the right to invoke the privilege was withheld from both at common law when the issues involved affected the integrity of the will.” Id. at 585-86.
The Maryland State Bar Association has indicated that the Benzinger rule is not without limits. In MSBA’s Ethics Opinion 94-37, the decedent’s personal representative was his daughter. The issue was whether the attorney for the decedent was required to turn everything in his files over to the personal representative, including “matters concerning a sensitive criminal matter.” The MSBA Committee on Ethics held that the duty to preserve attorney confidences transcend the client’s death. It held that the personal representative may generally authorize disclosures but the extent of the disclosures may be limited to the turning over of “all relative information to aid in a probate process.” In other words, the Committee suggested that the criminal matters may be withheld unless related to the probate process. In Ethics Opinion 02-08, the issue presented was whether the attorney for a deceased client could reveal confidences that may touch upon the deceased client’s murder. In that ruling, the issue was framed as follows:
“You seek guidance as to an attorney’s responsibilities with regard to client information that the attorney received through communications with a former client who has been murdered. The information came to the attorney by way of communications relative to spousal abuse that the client had with the attorney years prior to his/her murder. The information does not appear to reflect adversely on the now-deceased client’s interests. The information is, nevertheless, inconsistent with information attributed to the alleged perpetrator, the victim’s surviving spouse, appearing in the media. The attorney never represented the alleged perpetrator. You ask what responsibility the attorney has to provide (or not to provide) information that appears to be material to the administration of justice in light of the attorney-client privilege against disclosing client information. The attorney is motivated to see to the proper administration of justice by not having a guilty party go free, possibly because pertinent information may have to be kept confidential.”
The Committee held that the disclosure was permitted but only if the personal representative requests the information. Another advisory opinion involved revealing information when the attorney had represented both spouses and the information could impact one of the clients. MRPC Rule 1.6 provides, however, that “a lawyer may reveal such (confidential) information to the extent the lawyer reasonably believes necessary: (i) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another…” In Ethics Opinion 89-56, a lawyer drafted estate planning documents for a husband and wife. These documents provided that at the husband’s death certain bequests were to be made to members of his family. Upon his death, however, it became evident that the widow had no intention to establish the trust per the estate planning documents but was instead transferring all of the assets to her sole name. The estate planning attorney pointed out that it is a crime to willfully secrete or destroy a will that is in a person’s possession for safe custody. The MSBA Committee on Ethics used this criminal act as part of its analysis that the attorney may need to whistle-blow in these circumstances:
“A resolution of your ethical dilemma requires you to make a legal determination as to whether or not the acts of Mrs. X constitute a violation of Article 17, Section 127, or, in the alternative, constitute a fraudulent act. It should be noted that Rules of Professional Conduct define “fraud” or “fraudulent” as denoting “conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.” This Committee must refrain from opinion on legal issues. If you in fact determine that Mrs. X’s actions constitute a criminal act or a fraudulent act, then you have the discretions to reveal such information to the extent that you reasonably believe it necessary to do so.”