Ethics Opinion 324
Disclosure of Deceased Client’s Files
When a spouse who is executor of a deceased spouse’s estate requests that the deceased spouse’s former attorney turn over information obtained in the course of the professional relationship between the deceased spouse and the former attorney, the former attorney may provide such information to the spouse/executor, if (1) the attorney concludes that the information is not a confidence or secret, or, (2) if it is a confidence or secret, the attorney has reasonable grounds for believing that release of the information is impliedly authorized in furthering the interests of the former client in settling her estate. Where these conditions are not met, the deceased spouse’s former attorney should seek instructions from a court as to the disposition of materials reflecting confidences or secrets obtained in the course of the professional relationship with the former client. In the absence of such a court order, the attorney should dispose of the materials according to the guidance in Opinion 283.
Applicable Rule
- Rule 1.6 (Confidentiality)
Inquiry
We have received a request for an opinion concerning disposition of documents in the possession of an attorney following a client’s death. The inquirers are members of a law firm who represent a husband who is executor and sole heir of his deceased wife’s estate. The husband has asked that his wife’s former attorney1 turn over to the estate all documents and files his deceased wife furnished to her attorney, as well as all documents and files the attorney generated or retained in connection with the representation of the wife. These documents and files may be relevant to a legal claim the estate may have against third parties. The inquirers state that the wife’s attorney has expressed concerns that releasing the requested documents and files might violate “the attorney-client or attorney work product privileges” and that, “due to the nature of the representation of the deceased spouse,” the materials “constitute secrets [sic] and are protected by attorney-client privilege.”
The inquirers ask three questions: First, what should become of the documents and files the deceased wife furnished to her attorney? Second, what should become of the documents and files the attorney has generated and retained in connection with her former representation of the deceased wife? Third, may this attorney speak with the former client’s husband, who is the executor and sole heir to the estate, without violating “the attorney-client or attorney work product privileges”?
Although the inquirers cast their questions in the framework of privilege law, our answers are confined to their professional responsibilities under the D.C. Rules of Professional Responsibility (“D.C. Rules”), because our charter ordinarily does not extend to questions of substantive law beyond interpretation of the Rules. We thus offer this analysis of the scope of an attorney’s continuing duties of confidentiality to a deceased client under D.C. Rule 1.6.
Discussion
D.C. Rule 1.6(a) provides that a lawyer may not reveal “a confidence or secret of the lawyer’s client,” except under certain specified circumstances. Rule 1.6(b) defines a “confidence” as “information protected by the attorney-client privilege under applicable law,” and “secret” as any “other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” Thus, unlike ABA Model Rule 1.6 and the rules of many other jurisdictions, D.C. Rule 1.6 does not define as confidential all information relating to legal representation.2 Material that is not privileged under applicable evidentiary law and does not meet the definition of a “secret” under D.C. Rule 1.6(b) may be disclosed. See D.C. Rule 1.6 Comment [6].
The “fundamental principle” underlying D.C. Rule 1.6 is that the lawyer should hold inviolate client “secrets and confidences” so that the client will be “encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.” D.C. Rule 1.6 Comment [4]. This duty of confidentiality applies to information in any form,3 and continues after the termination of the lawyer’s employment. D.C. Rule 1.6(f). The “duty of confidentiality continues as long as the lawyer possesses confidential client information” and extends “beyond the end of the representation and beyond the death of the client.” Restatement of the Law Governing Lawyers § 60 comment e (2000).
The attorney-client privilege also usually extends beyond the death of a client. See, e.g., Swidler & Berlin v. United States, 524 U.S. 399 (1998) (holding that attorney-client privilege extends beyond the death of a client and citing numerous cases in agreement from a wide variety of jurisdictions.) As the Court in Swidler discussed, the testamentary exception to the general rule that attorney-client privilege extends beyond a client’s death may permit disclosure of privileged information in the context of settling a deceased client’s estate, because “the privilege, which normally protects the client’s interest, could be impliedly waived in order to fulfill the client’s testamentary intent.” Id. at 405 (citations omitted). A spouse may waive a deceased former client’s attorney-client privilege in other circumstances as well, such as where a statute authorizes or requires this step. See, e.g., State v. Doe, 101 Ohio St. 3d 170, 803 N.E.2d 777 (2004) (applying 50-year old untested Ohio statute authorizing surviving spouse to waive deceased spouse’s attorney-client privilege to require an attorney to testify about what a deceased client told her in a missing-child case).
In short, whether the materials at issue in the inquirers’ situation can be revealed to the inquirers’ client in his capacity as executor of his wife’s estate depends on the nature of the information they contain. Revealing the information would be appropriate if it does not constitute a confidence or secret under the definitions in D.C. Rule 1.6(a). Even if the information is covered by the duty of confidentiality as defined in Rule 1.6, release would be appropriate so long as the attorney has reasonable grounds for concluding that release of the information is impliedly authorized in furthering the former client’s interests in settling her estate. The inquirers have told us nothing about the nature of the matter in which the wife sought an attorney’s representation, except that it may be relevant to a legal claim the estate may wish to pursue against third parties. With these limited facts we cannot opine on the proper disposition of the documents and files retained by the deceased wife’s former attorney, but do offer a more general analysis that we hope will be of help.
In general, the exceptions to D.C. Rule 1.6 permit a lawyer to reveal confidences and secrets when: (i) the “lawyer has reasonable grounds for believing that a client has impliedly authorized disclosure of a confidence or secret in order to carry out the representation,” Rule 1.6(c)(4); (ii) with the client’s consent, after full disclosure to the client, Rule 1.6(d)(2); or when permitted by the Rules or (iii) “required by law or court order,” Rule 1.6(d)(1). Much information an attorney gains in the course of a representation is routinely disclosed on grounds of implied authorization to carry out the representation, as in drafting a complaint, for example. In the ordinary case, release of information an executor requests would be impliedly authorized under D.C. Rule 1.6(d)(4). In some unusual circumstances, however, an attorney facing the question of disclosure of a deceased client’s files or other information to a spouse/executor may confront a more difficult dilemma. An attorney unsure whether a deceased former client wanted information to be disclosed cannot seek the client’s instructions as contemplated under D.C. Rule 1.6(d)(1). Instead, the attorney must decide what the client’s instructions would have been if the attorney could have consulted her, and this may present a close question.
To take a hypothetical example: Imagine that a wife’s will states that she wishes to divide her property equally among her children. The wife later consults another attorney (“second attorney”) and confides to this second attorney that, prior to her current marriage, she gave birth to a child about which she has not informed her current husband, and wishes to provide for that child in her will without disclosing the nature of her relationship to this individual. The second attorney begins to prepare a new draft of her will, but the wife unexpectedly dies before it is finalized and signed. After the wife’s death, the husband, who is executor of the wife’s estate, asks the second attorney for information about the representation. The second attorney must decide whether she has information that is a confidence or a secret. In the example, the fact of the wife’s prior child is probably both: the wife told the second attorney this information in the course of seeking legal advice, and stated that she did not want this information disclosed to her husband. But whether the wife would want her wishes to provide for this individual to be known after her death is a more difficult question. The wife expressed to the second attorney her wish that all of her children be provided for, on the one hand, but may wish that her husband not learn of her prior child, on the other.
The decision about what to do in such a situation will require the attorney to exercise her best professional judgment. An attorney who reasonably believes that she knows what her client would have wanted, on the basis of either what the client told her or the best available evidence of what the client’s instructions would have been, should carry out her client’s wishes. The attorney will usually be best situated to make this determination. In rare situations, however, the attorney may wish to seek an order from the court supervising disposition of the estate and present the materials at issue for the court’s in camera consideration.
In reaching these recommendations, we are assisted by a number of opinions from other jurisdictions. The Disciplinary Board of the Hawaii Supreme Court, for example, addressed the question of when an attorney may disclose confidential information concerning a deceased client in Formal Opinion No. 38 (1999). The Board noted that the duty of confidentiality is broader than the attorney-client privilege and that, although a client’s heir or personal representative may have authority to waive the attorney-client privilege, the confidentiality protection under the Hawaii Rules of Professional Conduct may still apply. The Board further noted that obtaining client consent to such a disclosure under the Hawaii rules would not be possible once the client was deceased. The Board concluded, however, that such disclosure might be impliedly authorized in order to carry out the representation, and that in determining the necessity of disclosure of confidential information on this ground the attorney should “consider the intentions of the client.” Thus, if an attorney reasonably determines that confidentiality should be waived in order to effectuate the deceased client’s estate plan, the attorney would be both “permitted and obligated to make such disclosure.” See also Restatement of the Law Governing Lawyers § 60 comment I (“the lawyer may reveal confidential client information to contending heirs or other claimants to an interest through a deceased client” if there is “a reasonable prospect that doing so would advance the interest of the client-decedent”).4
The Philadelphia Ethics Committee recently considered a situation in which an inquiring attorney represented a client who committed suicide while being treated for mental health problems in a treatment facility. Philadelphia Bar Ass’n Ethics Op. 2003-11 (2003). The former client’s father asked the inquirer for information about his son’s death, and the inquirer asked whether Pennsylvania Rule of Professional Conduct 1.6 prohibited the inquirer from complying with the father’s request. The Committee reasoned that none of the exceptions to Rule 1.6 applied, but that the lawyer could look to the legal representative of the client for decisions on the client’s behalf.5 The Committee concluded that if the father was appointed executor of his son’s estate, he would be authorized to consent to the disclosure of information relating to his son’s representation. The Committee cautioned, however, that if the attorney were aware that the former client would not have consented to the revelation of information, the information should not be disclosed.
Finally, in Nassau County (N.Y.) Committee on Professional Ethics Opinion No. 03-4 (2003), the inquirer had represented a woman who sought to file a divorce action against her husband. The client told the inquirer that she did not want to serve papers against her husband or tell him about her plans until she had discussed the matter with her children after they finished their pending college semesters. Ten days later, the client died suddenly. The client’s husband discovered that his wife had sought legal representation when he found a check stub showing her payment of the inquirer’s retainer fee, and asked the inquirer for itemized billing information. The Nassau County Ethics Committee concluded that, if the information sought revealed the former client’s confidences or secrets related to the inquirer’s representation of her, the inquirer could not disclose the information requested. The Committee noted that the spouse/executor was the very person whom the inquirer’s former client requested not be informed of her plans to seek a divorce until she had “informed her children, a plan upset by her sudden death,” and that it was unclear whether the spouse/executor, in requesting the detailed billing records, was “acting to protect the estate and its beneficiaries, or to satisfy his own personal interests.” Nassau Op. 03-4 at 2, 5.
The Nassau County Ethics Committee had several helpful suggestions for lawyers facing similar situations. First, the Committee suggested that the inquirer determine whether the spouse/executor would accept the requested itemized billing information in a redacted form that avoided disclosure of his wife’s secrets and confidences. This course, the Committee pointed out, could satisfy the spouse/executor’s fiduciary duty to determine the proper amount of the partial refund of the retainer fee owed the estate. A similar result might be achieved by offering the written retainer agreement redacted so as to omit the purpose of the legal representation. Op. 03-4 at 6. Finally, the Committee noted that, if the spouse/executor was not satisfied with such offers of redacted documents, the inquirer’s refusal to turn over all of the information requested might lead the spouse/executor to seek judicially ordered disclosure in the probate proceeding or related separate action. This development would require the inquirer to present the relevant facts and professional responsibility issues to a court for its determination, including a possible in camera examination of the inquirer’s unredacted records. If a court ordered disclosure of the records, the inquirer could either comply with the order, as permitted under the New York provision equivalent to D.C. Rule 1.6(d)(2)(A), or seek appellate review if appropriate.
Our prior opinions have said that an attorney must refuse requests for disclosure of confidential client information until a court has entered a final judicial order requiring such disclosure. See D.C. Bar Ethics Op. 214 (1990). We concluded that the attorney need not also pursue appellate review of that order. Id. We further noted that the attorney must give the client notice of the order and a reasonable opportunity to seek review of the order independently. Id. These are conditions that cannot be satisfied when the client is deceased. Nonetheless, we think the reasoning of the Nassau Committee is sound on this point, and that, in the general case of a deceased client, an attorney may disclose confidential client information once he or she has been finally ordered to do so by a court, without necessarily seeking appellate review of the court’s order. D.C. Rule 1.6(d)(2)(A).
Our prior opinions have also offered guidance to attorneys on handling documents and other materials related to the representation of a former client. In D.C. Bar Ethics Opinion 283 (1998), we advised that lawyers must take care to protect the confidentiality of the contents of clients’ closed files. We advised that in a situation in which it was not possible to obtain instructions from the former client or his legal representative as to what to do with such files, a lawyer who concludes that “further retention of a former client’s closed files is ‘not reasonably practical to protect a client’s interests’ may destroy the files five years after the termination of the representation.” Id.
In sum, the proper disposition of the documents the wife’s former attorney retains from the prior representation depends on the husband/executor’s status in relation to the matter handled in the prior representation. If the matter relates to the husband’s fiduciary duties in handling the disposition of the wife’s estate, and if disclosure of the information is impliedly authorized in order to further the deceased client’s interests as the former attorney can best ascertain them, then the attorney should furnish the materials to the husband/executor. On the other hand, if these conditions are not met, the wife’s former attorney should not turn over the documents. If the attorney reasonably believes that the correct course of conduct is uncertain, she should seek instructions from a court. If no such instructions are forthcoming, the attorney should dispose of the documents according to the guidelines in our Opinion 283. The same analysis applies on the inquirers’ question whether the former wife’s attorney may speak to the executor/husband. An attorney may disclose a deceased former client’s secrets and confidences in any manner, including oral conversation, only if the conditions discussed in this opinion have been met.
Inquiry No. 04-01-02
Adopted: 18 May 2004
Published: May 2004
1. The term “former attorney” refers to the fact that the client is deceased. We do not intend to imply that the attorney-client relationship terminated for some other reason prior to the client’s death.
2. The deliberate decision to incorporate this difference from ABA Model Rule 1.6 is reflected in the legislative history of D.C. Rule 1.6. See Proposed Rules of Professional Conduct and Related Comments, Showing the Language Proposed by the American Bar Association, Changes Recommended by the District of Columbia Bar Model Rules of Professional Conduct Committee, and Changes Recommended by the Board of Governors of the District of Columbia Bar (unpublished document dated November 19, 1986), at 41 (deleting ABA Model Rule language covering all “information relating to representation of a client” and inserting D.C. Rule 1.6(b) language defining “confidence” and “secret”); id. at 44 (adding same language to D.C. Rule 1.6 comment [6] ); id. at 50 (explaining that D.C. Rule 1.6(a) is substantially identical to ABA Model Code DR 4-101(A), which defines “confidence” and “secret”); id. at 52 (explaining that the Committee and Board preferred the narrower scope of DR 4-101(A) to the ABA’s unexplained change in the scope of Model Rule 1.6).
3. See D.C. Rule 1.6 Comment [6] (“This ethical precept, unlike evidentiary privilege, exists without regard to the nature or source of the information or the fact that others share the knowledge”); Restatement of the Law Governing Lawyers § 59 comment b (definition of confidential information includes documents, files, photographs and other similar materials).
4. Other ethics committee opinions reaching similar conclusions include Kansas Bar Association Professional Ethics Advisory Comm. 01-1 (2001) (a lawyer may use or reveal confidential client information or documents to advance a deceased client’s interests in the disposition of property rights by inheritance, but the transfer of information or documents should be limited to that necessary to defend and prove the rights at issue and should not contain information that could be adverse to the deceased client); North Carolina State Bar Ethics Op. 206 (1995) (a lawyer may reveal a client’s confidential information to the personal representative of the client’s estate, unless the disclosure of confidential information would be clearly contrary to the goals of the original representation or would be contrary to the instructions of the client to the lawyer prior to the client’s death).
5. Here the Committee turned to Rule 1.14, which deals with a client under a disability, perhaps because that Rule would have applied to the former client while living.
