Question:  Lawyer formerly represented an estate planning client, Client, who is now deceased.  Lawyer has been engaged by Successor Trustees of the Trust for Client to assist Successor Trustees with handling the winding up of the Trust and making distributions to the beneficiaries.  Lawyer provided the active trust documents to Successor Trustees.  The bank is requesting prior trust documents even though the Second Amended and Restated Trust clearly state that prior amendments to the trust have been revoked and that it constitutes the current operating agreement going forward.   Lawyer has maintained Client’s file in accordance with Rule 4 dash–1.22, and still has the documents in question.

Lawyer asks if the Rules of Professional Conduct allow disclosure to the Successor Trustees and/or the bank of any of the prior revoked trust documents?

Answer:  The analysis is the same for any possible disclosure of the prior revoked trust documents whether to the Successor Trustees or the bank.  The duty of confidentiality to a client pursuant to Rule 4 dash–1.6(a) survives the death of the client.  See Missouri Informal Advisory Opinions 20070016, 20040004, 20030016, 20010154, 990146, 980172, and 970157.  As applicable in this matter, Rule 4 dash–1.6(a) prohibits Lawyer from revealing information relating to the representation of Client unless Lawyer had the consent of Client prior to Client’s death, Lawyer is impliedly authorized to disclose the information to carry out the representation, or Lawyer meets an exception pursuant to Rule 4 dash–1.6(b).  If Lawyer does not meet the criteria for disclosure in Rule 4 dash–1.6(a), Lawyer must then comply with Rule 4 dash–1.6(b).

Rule 4 dash–1.6(b) provides that “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:…(4) to comply with other law or a court order.”  Whether other law permits or requires disclosure of the prior trust documents or amendments is a matter of law and beyond the scope of the Rules of Professional Conduct.  Lawyer should consult Comment [10] to Rule 4 dash–1.6 for additional guidance as to any possible exception at law and use Lawyer’s independent professional judgment in making such a determination.

Further, Lawyer may be required by a court order to disclose the prior trust documents per Rule 4 dash–1.6(b)(4).  Lawyer should be mindful that a subpoena is not enough to require disclosure, but there must be a court order.  Comment [11] to Rule 4 dash–1.6 provides guidance that if Lawyer does not have now deceased Client’s consent to disclosure, Lawyer should assert “all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.”[1]  Comment [11] further notes that an appeal should be considered in the event of an adverse ruling, but Lawyer is permitted by this rule to comply with the court’s order.  See also Missouri Informal Advisory Opinions 20060004, 20010154, and 2017 dash–04.

In the event that disclosure is permitted by Rule 4 dash–1.6(b), Lawyer should consult Comments [12] and [13] to Rule 4 dash–1.6 for guidance on ensuring that the disclosure is only to the extent Lawyer reasonably believes is necessary to accomplish the specified purpose.

[1] Rule 4 dash–1.6 on confidentiality “not only applies to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.”  Rule 4 dash–1.6, Comment [3].  Related bodies of law address confidentiality through attorney-client privilege and the work-product doctrine, which apply in judicial and other proceedings in which a lawyer may be called as a witness or to produce evidence regarding a client, but interpretations of those principles are matters of law and beyond the scope of the Rules of Professional Conduct. See Rule 4 dash–1.6, Comment [3].

[1] Rule 4 dash–1.6 on confidentiality “not only applies to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.”  Rule 4 dash–1.6, Comment [3].  Related bodies of law address confidentiality through attorney-client privilege and the work-product doctrine, which apply in judicial and other proceedings in which a lawyer may be called as a witness or to produce evidence regarding a client, but interpretations of those principles are matters of law and beyond the scope of the Rules of Professional Conduct. See Rule 4 dash–1.6, Comment [3].

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