"The Ethicist" Gets It Wrong in The New York Times

[Cross-posted on Legal Ethics Forum]

The “Ethicist” column in the New York Times Magazine was originated by a humorist, but it has lately been written by Kwame Anthony Appiah, a highly regarded philosophy professor at New York University.  The format is the same; readers send in their real-life ethics quandaries, and Appiah provides them with advice.  His answers are usually insightful and sometimes provocative, although I think that they are too often hedged with what the letter-writer “might” do or “probably” should consider.  Even so, the “Ethicist” is the first page I turn to in the Magazine (after I have finished front section, the Sunday Review, and the Book Review).

Appiah’s current column, however, is disappointingly weak, and he missed an opportunity to dispense some meaningful ethics advice.

The question was about the letter-writer’s obligation to a dying friend, who had long ago fathered a child with a woman other than his then wife.  The friend seems never to have told anyone else about the child, including his two adult children:

I believe I am the only person in his circle of friends and family who knows that he has another child with another woman.  That child is probably close to 30 now.  My friend has had no contact with the child since birth and almost no contact with the child’s mother.  This appears to have been the way they both wanted it.

The letter-writer’s question is whether to defy the dying man’s wishes and tell the known children about their secret half-sibling, either now or after their father passes away.

Appiah does not provide a firm answer, saying only that the friend’s request for secrecy will not “have the same gravity” after his death.  It would also “be good to be clear about his reasons” before deciding whether to override them.  The equivocation was not necessary, as I believe there is a clear answer to the ethics question, although Appiah did not touch on it.

The friend’s conduct toward his secret child was profoundly unethical.  Even if the child’s mother wanted no contact with him – a questionable assertion, which is almost always the favored excuse of a defaulting parent – that does not mean the child felt the same way.  Nearly all children want some contact with their fathers, and every single one is entitled to financial support.  The friend’s neglect of his own child was, to put it as politely as possible, dishonorable.

This implicates the letter writer’s obligations as well, because he or she has been designated as “trustee of the trusts he established for his two children.”  But as the letter writer knows, there are actually three children.  An out of wedlock child has equal rights to inheritance in every state, and thus the secret child has a valid claim on his or her father’s estate – which is at least sufficiently extensive to warrant the establishment of trusts.  Most states also have “pretermitted heir” statutes, which provide for children even if they have not been named in a parent’s will, so long as they have not been specifically disinherited.  We may assume that the latter did not happen, given that the existence of the child has been kept secret (hence, no mention in the will).

I would therefore say that the letter writer will have an ethical obligation – and perhaps even a legal obligation – to inform the secret child of his or her potential inheritance.  This will necessarily also alert the two known children of their half-sibling, while at the same time righting a long-standing injustice.

NOTE:  I will answer some possible questions after the jump.

Even if the friend has effectively disinherited the secret child under state law, the ethical obligation remains, if only to give that child an opportunity to challenge the will.

The LW does not mention being an attorney, so there would be no question about privilege or confidentiality.  Appiah says that disclosure is optional, so he also does not consider privilege.

It is possible that the LW, as trustee, owes the known children a duty not to dilute their inheritance by informing the secret child.  But LW could still tell them of the secret child, which would allow them to exercise their own ethical judgment about a duty to their half-sibling.  LW's silence would deprive the known children of ethical autonomy.

A lawyer or trustee may have to put the interests of clients ahead of all others, but an ethics adviser should also raise the potential moral obligations to third parties.  By omitting the interests of the secret child, Appiah's answer is at the very least seriously incomplete.

The LW says only that the friend had no contact with the secret child since birth, and almost no contact with the mother.  It is remotely possible that he nonetheless paid some support, although that is highly unlikely given that LW did not mention it.  We also know that only a fraction of court-ordered support is paid even for acknowledged children in contact with their fathers, which makes support even less likely in this case.  Only 41% of non-custodial fathers pay the full amount of child support, and 25% pay nothing -- and those are the figures for non-secret children.

Even if the friend had made some support payments, that would not change the secret child’s interest in his or her inheritance.

Comments

[RQA]

On the one hand, Prof. Lubet writes: "I would . . . say that the letter writer will have an ethical obligation -- and perhaps even a legal obligation -- to inform the secret child of his or her potential inheritance." On the other hand, recognizing that as trustee of a trust for the two recognized children the letter-writer has a fiduciary obligation not to dilute their inheritance, Prof. Lubet proposes that the letter-writer might only be obligated to inform those two children of their half-sibling's existence, but would presumably be bound to respect their silence if they chose to keep the entire inheritance to themselves. To whom does the letter-writer owe the obligation? If it's to the secret child, I don't see how the obligation can be discharged by informing the recognized children and then acquiescing in their indifference. Assuming the letter-writer as trustee would have a fiduciary obligation to the recognized children, it seems to me that if knowledge of the secret child creates the obligation Prof. Lubet initially suggests, the letter-writer has an unavoidable conflict and must withdraw as trustee.

[Steve L.]

Those are good observations, RQA, and the starting point for a rich discussion. At a minimum, we need to separate "ethical" (in the lay sense) from "fiduciary" obligations. The former run to all affected parties; the latter run only to trust beneficiaries.

My initial thought -- though I could be persuaded otherwise -- is that the duties converge. The secret child is entitled to know of his or her potential inheritance; the trust beneficiaries are entitled to the moral agency necessary to decide what to do about their half-sibling. The result is disclosure in either case.

You are right, and I should have noted, that opting for lay ethics would require withdrawal as trustee.

[Alfred L. Brophy]

Steve, one small issue here: the omitted child statute in most states that I'm familiar with applies only to children born after the execution of a will or trust. Obviously non-marital children have the same right to inherit intestate as marital children.

[Steve L.]

Thanks, Al. That is why I included the point about potentially challenging the will, which would give the non-marital child an intestate share.

[NotthesecretchildIdontthink]

As I read the column, some of your factual premises are uncertain. The dying friend may or may not have prohibited the letter writer from alerting the secret child. And the letter writer's assumption that "my friend did not want them to know, or he would have told them himself," is likely but not at all certain -- many prefer hard news to be tendered by others.

Regardless, I don't follow your analysis. Where do you show that the letter writer has "perhaps even a legal obligation – to inform the secret child of his or her potential inheritance"? And why do you think that "disclosure in either case," as you indicate in the comment, is fungible? It's simply not the case that disclosing to the secret child, or to the known children, necessarily means that those parties will disclose to the other, and thus could not acquit the letter writer of any personal obligation. And how else can the duties "converge"? Don't we need to know to which party the obligation runs, and isn't there a sound argument that fiduciary obligations preclude disclosure to the secret child?

P.S. As far as critiquing the column goes, consider relative word counts.

[Eman Printing]

Yap, Assuming the letter-writer as trustee would have a fiduciary obligation to the recognized children, it seems to me that if knowledge of the secret child creates the obligation Prof. Lubet initially suggests, the letter-writer has an unavoidable conflict and must withdraw as trustee.

[TooOldToBeTheSecretChild]

I think LW assumes facts not-in-evidence. The child's paternity is known (both to its mother, and perhaps to the child). Perhaps the child (who is now an adult) is exercising waiver of some type by not making their presence known to the half-siblings. (If I had a nickel for every time an illegitimate child opted to waive a right to inheritance in US history, I'd be rich!) If that is the case, isn't the ethical duty to remain silent? At the same time, though, I wonder whether the fiduciary duty extends to advice regarding likely potential litigation over the will and trust. If the secret child is waiting in the wings for an obituary to pop up somewhere, then isn't it possible that they will seek to disinherit their siblings and make their existence known?