Opinion 204
Question Presented
A widow brought deceased husband's unsigned will to an attorney, stating a desire to have it probated merely because it named her as Independent Executrix and would thus save the estate some money in the administration of the estate. Client admits testator never signed the will, but stated that she could get two witnesses who would swear that testator had signed same. The attorney advised the client she could not do so, and further that any such witnesses she might procure would be committing a crime. The attorney set a fee for the interview, and was told by the client that she would consult the children and contact him later if they desired to retain him. His fee was paid and nothing further was heard from the client. \
The attorney was later consulted by testator's daughter by a former marriage from whom he learned that the widow had indeed probated such a will as had been earlier described to him, upon affidavit by two witnesses that they had witnessed the original at the testator's request. Attorney advised the daughter that he could not represent her, without disclosing his reason, and advised her to secure another attorney. The attorney checked the probate file and is convinced the widow is perpetrating a fraud upon the testator's children, including the daughter by his previous marriage.
Based upon the foregoing: (1) may the attorney testify as to the facts disclosed by the widow at the earlier interview, and (2) should the attorney volunteer to testify and disclose the facts either to the court or to the attorneys involved, or both?
18 Baylor L. Rev. 291 (1966)
CONFIDENCES OF A CLIENT - WILL - INTENTION TO COMMIT A CRIME
When an attorney is made aware in confidence that a client is contemplating commission of a crime and later finds that the client has committed such crime, attorney is not bound to respect confidences of client. Whether or not attorney should reveal such facts is a matter of personal and not legal ethics.
Canons 6, 34.
As to the question one, the Committee is of the opinion that the attorney can testify as to the facts learned from the client at the earlier interview, despite the facts that such a course of action clearly involved disclosure of the confidences and secrets of a client. The policy underlying Art. 713, C.C.P. and Texas Canons 6 and 34Χthat of providing an atmosphere of security conducive to a client's full disclosure of facts to his attorneyΧdoes not extend to the protection of a client who seeks legal advice as to a prospective crime. Texas Canon 34 expressly provides that the announced intention to commit a crime is not included within the confidence the attorney is bound to respect, and that he can properly make such disclosures as are necessary to prevent the act or protect those against whom it is threatened. A strict interpretation of this provision would perhaps permit disclosure only when the client has expressly announced that she is going to probate the will by use of perjured testimony, but such a strict interpretation would not be in accord with the spirit of Canon 34.
As to question two, the Committee is of the opinion that while nothing prevents an attorney from testifying in this matter, there is, at the same time, nothing in the Canons compelling the attorney to do so. The question is one of personal rather than legal ethics, though the duties of good citizenship would seem to call for disclosure. (5-1)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 204 (1960)