Question:  Lawyer was representing Client in a personal injury action when Client unexpectedly died from an unrelated matter.  No estate has been opened for Client.  The engagement agreement between Lawyer and Client does not address the release of confidential information by the Lawyer.  May Lawyer contact Client’s next-of-kin to inquire about opening an estate to preserve the personal injury claim?   

Answer:  Whether a personal injury claim survives the death of a plaintiff and whether a plaintiff’s estate can be substituted for a deceased plaintiff are substantive issues of law beyond the scope of this opinion.  While the attorney-client relationship ceases upon the death of the client, the duty of confidentiality survives.  See Rule 4 dash–1.6 and Informal Opinions 20070016, 990146, 950125, 950256, and 940013.  Confidential information encompasses all information related to the representation of the client, including information regarding the client’s death and client’s pending legal claims.  See Rule 4 dash–1.6, Comments [1] and [3].  Rule 4 dash–1.6 permits disclosure of confidential information if disclosure is impliedly authorized to carry out the representation.  See Rule 4 dash–1.6(a). Unless Client explicitly expressed otherwise to Lawyer, Lawyer may reasonably assume that Client would want the estate/heirs to recover for Client’s injuries.  Thus, Lawyer may contact Client’s next-of-kin and make a limited disclosure regarding Client’s death and the existence of the lawsuit.  This will allow the next-of-kin to consider whether to petition the court to open an estate to preserve the Client’s personal injury claim.

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