Washington Lawyer

Legal Ethics: Disclosure of Deceased Client's Files

From Washington Lawyer, June 2004

Opinion 324
Disclosure of Deceased Client’s Files

(The June 2004 “Speaking of Ethics” column discussed Opinion 324 and its complex legal situation for a lawyer’s utilizing and turning over confidential information of the lawyer’s deceased client. Rule 1.6 (Confidentiality) was prominently utilized, and a series of possibilities were described, each pertinent to the situation or a succeeding a measure already taken.)

… 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 attorney 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”?

… (O)ur 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.

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.” … D.C. Rule 1.6 does not define as confidential all information relating to legal representation. 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, and continues after the termination of the lawyer’s employment. D.C. Rule 1.6(f). …

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)… 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 …. 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. …

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. …

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). … In the ordinary case, release of information an executor requests would be impliedly authorized under D.C. Rule 1.6(d)(4). … 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). …

. . . .

… 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. …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.

. . . .

… (I)n 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).

… In D.C. Bar Ethics Opinion 283 (1998), we advised …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: May 18, 2004