Informal Opinion Number: 990146

QUESTION: Attorney prepared a will for a person who has now passed away. The will was filed in probate, but an estate was not opened. The personal representative has now terminated Attorney´s services. The personal representative and the new attorney have requested all of the personal representative´s legal matters be turned over to the new attorney. They have also requested the estate planning file of the deceased be turned over to the new attorney. What should Attorney do about the estate planning file of the deceased?
ANSWER: The duty of confidentiality under Rule 4-1.6 survives death. Attorney may not voluntarily provide the estate planning file, or information about the advice provided to the deceased family member, unless that person expressly consented to such disclosure. If Attorney is subpoenaed to provide the information, Attorney may only do so after the factual and legal issues related to confidentiality are fully presented to the court and the court orders Attorney to disclose the information.

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.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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