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Commonwealth of Massachusetts


February 2004

DEATH AND CONFIDENTIALITY

by
Roger Geller and Susan Strauss Weisberg

Here's a hypothetical based on several calls to our ethics hot line about releasing estate-related information after the death of a client. Our hypothetical caller had drafted a will for a client who recently died. The client, a widow with two adult children, left most of her estate to her son and nominated the son as executor. The caller has received separate inquiries from the son’s lawyer, who is getting ready to probate the will, and from a lawyer representing the client’s other child, a daughter. Both lawyers want to review the caller’s file for the client and pick his brain about the client’s competence, her assets, and her decisions about the disposition of the assets. The daughter’s lawyer has also informed the caller that the daughter may contest the will. The caller, thinking that he might be able avert a will contest by conferring informally with the children's counsel, asks whether he could speak with one or both lawyers and give them copies of his file.

Mass. R. Prof. C. 1.6 prohibits the caller from revealing confidential information relating to his representation of the client except under the specific circumstances set out in the rule. “Confidential information” includes not only communications with the client, which are protected by the evidentiary attorney-client privilege, but also virtually all other information gained from any source in the course of the representation. See Comment 5 to Rule 1.6. Both the duty to protect the privilege and the broader obligation under Rule 1.6 to maintain the secrecy of confidential information survive the client's death. In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 483, 484 (1990), and cases cited (deceased client’s lawyer could not be required to appear before grand jury investigating a homicide to testify concerning privileged communications with deceased client; "rule of confidentiality" applies both before and after death of client.)

To comply with Rule 1.6, an attorney must secure the consent of the client to make the disclosures, have implied authority to make the disclosures, or come under one of the exceptions to the rule. "Implied authority" relates to disclosures appropriate to carry out the representation, such as disclosures in pleadings or settlement negotiations, and does not apply here. See comment [7] to Rule 1.6. The exceptions, set out in Rule 1.6(b), give the lawyer discretion to release confidential information (1) to prevent a criminal or fraudulent act likely to result in death or substantial bodily harm or financial injury, or to prevent wrongful execution or incarceration; (2) to establish or defend against a claim in a controversy with the client or respond to allegations of misconduct; (3) to the extent necessary to rectify client fraud in which the lawyer’s services have been used; or (4) when permitted by the Rules of Professional Conduct or required by law or court order. Based on what the caller told us, none of these exceptions applies to his current situation.

There is authority that a personal representative of the decedent’s estate (executor or administrator) appointed by the probate court may waive the attorney-client privilege on behalf of the decedent and consent to the release of confidential information, at least for some purposes. See District Attorney for Norfolk District v. McGraw, Executor, 34 Mass. App. Ct. 713 (1993), citing In the Matter of a John Doe Grand Jury Investigation, supra at 483 (husband, suspected of murdering wife, removed as executor of wife’s estate after refusing to permit wife’s attorney and psychotherapist to appear before grand jury investigating circumstances of wife’s death); Brooks v. Holden, 175 Mass. 137, 141 (1900) (statements of decedent to his attorney admitted upon waiver by administrator of decedent's estate). See also Sullivan v. Brabason, 264 Mass. 276 (1928) (attorney who drew a will can testify about conversations with the decedent if executor waives attorney-client privilege). In our caller’s case, although the son was nominated as executor in the will, no personal representative has yet been appointed. As a result, no one currently has authority to waive the privilege or consent to the caller’s disclosure of confidential information.

If there is a will contest, the caller could be required to testify about otherwise-privileged communications that are determined to be relevant to the controversy. See, e.g., Panell v. Rosa, 228 Mass. 594, 596-597 (1918) (attorney allowed to testify about communication with deceased client in will contest involving issue of soundness of mind); Doherty v. O’Callaghan, 157 Mass. 90, 93 (1892) (attorney who drafted will could testify about client’s instructions where challenge to will arose from allegations of fraud and undue influence). Here, however, there is no pending action in which a judge could determine the permissible limits of any disclosure by the caller. Even if the caller were ordered to testify in a proceeding, he would still be obliged under Rule 1.6 to protect the confidentiality of file materials or other information unrelated to the dispute between the children, including non-privileged information from sources other than the client.

In the current circumstances of our hypothetical, our caller must not voluntarily disclose any privileged or other confidential information to either lawyer. If the caller were served with a trial or deposition subpoena in a probate proceeding, in the absence of a waiver by the appointed estate representative, he would have to assert the privilege and his obligations under Rule 1.6 pending a judicial determination regarding any disclosures. See L. G. Bauer, “Subpoena Savvy: What to Do When Your Client’s File is Subpoenaed,” www.state.ma.us/obcbbo.subpoena.htm (November 2002). The caller would then be required to comply with any ensuing court order for his testimony or production of records from the client’s file. See comment [20] to Rule 1.6.

Finally, our caller has to resist the urge to "help" the children by trying to mediate or resolve their dispute. Information from other people without confidentiality problems may be available to assist the children in evaluating the likely outcome of a will contest. In any case, the caller's ongoing responsibility is to preserve the confidences of his client.



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