Informal Opinion Number: 20010154

QUESTION: Attorney prepared a durable power of attorney for Client over a year ago. Client is now deceased. Attorney recently received a subpoena requesting the durable power of attorney. The original durable power of attorney is in Attorney’s file and was never distributed to anyone. Shortly after executing the document, Attorney was advised that the Division of Aging has probable cause to believe that X had financially exploited Client. The charges relate to forgery. Is Attorney required to provide the durable power of attorney? Attorney would like to cooperate, but understands that the attorney/client privilege continues after death.
ANSWER: If Client gave consent to disclosure of the Durable Power of Attorney while Client was alive, in a manner that would cover the current circumstances, Attorney may disclose it. If Client did not give such consent, the Power of Attorney is confidential. Attorney may only disclose it if Attorney is ordered to do so by a court, after the issue of confidentiality has been fully presented. Attorney should seek to have any such order as specific and limited as possible.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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