20040028 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri



Informal Opinion Number: 20040028

Rules: 4–1.6

Client-Lawyer Relationship

Confidentiality of Information

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

Summary: parties to will contest cannot waive confidentiality rule

QUESTION: Attorney represented decedent in preparation of her Last Will and Testament, which she later amended. The Will is being challenged and the Plaintiff and the Defendant are submitting to the court a joint application for a court order waiving privilege. Attorney’s testimony is necessary to show that the decedent was competent at the time she prepared her Will. Do the Plaintiff and Defendant have standing? May Attorney waive the privilege and testify?

ANSWER: The parties to the litigation do not have standing to waive the confidentiality of information that Attorney may have. Attorney has a duty to maintain confidentiality under Rule 4 dash–1.6. However, Attorney may disclose the information if ordered to do so by a court after the issue of confidentiality has been fully presented. Attorney should seek to have the order as limited and specific 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.

Request an Informal Opinion.