20030016 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20030016

Rules: 4–1.6

Client-Lawyer Relationship

Confidentiality of Information

Subject: Confidentiality; Deceased Client; Estates, Wills, and Trusts

Summary: disclosure of draft estate documents where client died before estate plans effectuated

QUESTION: Client came to Attorney with a rough draft of a trust. Client provided Attorney with information Attorney needed to complete the trust document and some other estate planning. Client died before Attorney could prepare the documents. Attorney has received a request to produce all documents related to estate planning for Client to the attorney for Client’s family. What should Attorney do?

ANSWER: Attorney may not disclose any documents or information unless Attorney is ordered to do so by a court, after the issue of confidentiality under Rule 4 dash–1.6 has been fully presented. If a court orders Attorney to disclose documents, information, or both, Attorney may do so. It is not necessary for Attorney to appeal such an order. The duty of confidentiality under Rule 4 dash–1.6 is not the same as the attorney-client privilege, which is a narrower, evidentiary statute, although the terms are often used interchangeably. The attorney-client privilege survives death. Swidler & Berlin v. U.S., 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998).

Although there are cases that state that the privilege does not apply as between heirs of an estate in order to effectuate the intent of the decedent, those cases may be the basis for a judge to rule that an attorney should disclose information. They do not stand for the proposition that the attorney should be the one to decide whether the privilege applies. An attorney, in the absence of express consent from the decedent, may only disclose information or documents clearly necessary to effectuate the decedent’s intent, such as an executed will or other similar document.

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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