QUESTION: Attorney prepared an agreement for a client who is now deceased. Litigation is pending between the estate of the deceased, and various entities and heirs of the deceased. Attorney provided copies of the agreement to each attorney involved in the litigation. Attorney has since been served with a subpoena to have a deposition taken and to produce all files and documentation regarding the deceased. It is Attorney’s understanding that Attorney may only disclose the information if a court orders Attorney to do so after the issue of confidentiality has been fully raised. What should Attorney do to present the issue of confidentiality to the court? Is it Attorney’s responsibility to initiate a proceeding to obtain the court order? If the other attorneys involved in the litigation present the issues to the court, is Attorney required to be present at the hearing?ANSWER: Attorney can only provide the information pursuant to a court order after the issue of confidentiality has been fully presented. Attorney should seek to have such an order as specific and limited as possible.There are many ways in which the issue can be presented to the court. It is permissible for Attorney to cooperate with the other attorneys and parties involved and to stipulate to facts, other than those related to the confidential information at issue. Attorney and the other attorneys can work out whether Attorney will file a motion, such as a motion to quash or for a protective order, or whether they will file a motion to compel. This is an area in which a stipulation might establish the necessary facts without the need for going through the process of a deposition at which Attorney would refuse to answer.It will be necessary for Attorney to know that the issue of confidentiality has been fully presented. If Attorney knows that another attorney will be fully presenting that issue, it is not necessary for Attorney to be present. However, it is probably advisable for Attorney to be present in the event that the court has questions for Attorney.

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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