After a client dies, can the lawyer who drafted the will disclose the client's confidential information to family or the personal representative?

Plain-English summary

Opinion 132 (adopted September 2017 and revised June 2021 to incorporate the Colorado Supreme Court's decision in In re Estate of Rabin) addresses a lawyer's confidentiality duties after a client dies. The Committee concludes that the duty of confidentiality under Rule 1.6(a), which bars revealing information relating to the representation absent informed consent, implied authorization, or an exception, survives the client's death, because Rule 1.6(b)'s list of exceptions does not include "death of client" and Comment [20] states the duty continues after the relationship ends. The opinion uses the recurring example of a disappointed family member who asks the drafting lawyer about a deceased testator's intentions: the lawyer ordinarily may not respond without violating Rule 1.6.

The opinion treats Estate of Rabin, 2020 CO 77, as directly on point. There the Colorado Supreme Court rejected the argument that a personal representative is automatically entitled to a deceased client's legal files under property law or the Probate Code, and instead applied Rules 1.6, 1.16, and 1.16A. Under Rabin, the attorney-client privilege, the work-product doctrine, and the ethical duty of confidentiality survive death and may be waived only by the client's express or implied waiver. By nominating a personal representative, a decedent impliedly waives the privilege, but only as to communications necessary for estate administration; the lawyer may provide the personal representative only such information as is necessary to settle the estate, and the rest of the file remains privileged or confidential. The Court emphasized that an attorney cannot turn over a decedent's complete legal files to the personal representative unless the decedent gave informed consent for that broad disclosure.

The Committee extends Rabin's restrictions beyond estate administration. It reasons that other third parties (a spouse, children, or others), in contexts such as divorce, business, or criminal matters, may seek a deceased client's files, and that the same limits on disclosing privileged or protected information apply. The opinion's conclusion: a lawyer may disclose protected information about a deceased client's testamentary wishes only to the extent necessary to carry them out where the decedent expressly or impliedly authorized disclosure, where disclosure is to the personal representative and necessary to settle the estate, or where a court orders it; otherwise no disclosure may be made to third parties, including the personal representative or beneficiaries. The opinion also notes the lawyer should assert all non-frivolous objections to a subpoena seeking a deceased client's protected information.

In practice

The opinion holds that, under the Colorado rules as they stood at the time of the opinion (as revised in 2021 to reflect Estate of Rabin), a deceased client's confidences remain protected. Per the opinion, the drafting or representing lawyer may disclose protected information only in three situations: where the decedent expressly or impliedly authorized the disclosure (for example in the will or another writing), where the disclosure is to the personal representative and necessary to settle the estate, or where a court orders it. The opinion makes clear that a personal representative has no automatic right to the full legal file, that beneficiaries and other family members generally are not entitled to protected information, and that these limits apply outside the estate context as well. It also notes the lawyer's duty to assert non-frivolous objections to a subpoena for a deceased client's protected information.

Common questions

Q: A beneficiary is unhappy with the will and asks what my deceased client really wanted. Can I tell them?

A: Ordinarily no. The opinion concludes the duty of confidentiality survives death, so the drafting lawyer usually may not respond without violating Rule 1.6 unless the decedent authorized the disclosure or a court orders it.

Q: Is the personal representative entitled to the whole file?

A: No. Under Estate of Rabin, as the opinion explains, the personal representative receives only information necessary to settle the estate; the lawyer cannot turn over the complete legal file unless the decedent gave informed consent for that broad disclosure.

Q: Does this only apply to wills and estates?

A: No. The opinion extends Rabin's restrictions to other contexts, such as divorce, business, or criminal matters, where a third party seeks a deceased client's files or communications.

Q: What if I receive a subpoena for the deceased client's records?

A: The opinion states the lawyer should assert all non-frivolous objections that the order is not authorized by law or that the information is protected by privilege or the duty of confidentiality.

Background and rules framework

The opinion interprets Colo. RPC 1.6(a) (confidentiality) and its Comments [3], [15], and [20], read with Rule 1.6(b) (exceptions, which do not include client death), Rule 1.8(c) (limits on revealing former-client information), and Rules 1.16 and 1.16A (file and property duties). It relies heavily on In re Estate of Rabin, 2020 CO 77, and on Wesp v. Everson and People v. Madera for the survival of the attorney-client privilege after death, and on the ACTEC Commentaries.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.6 / Model Rule 1.6 (confidentiality; Comments [3], [15], [20])
• Colo. RPC 1.8(c) / Model Rule 1.8(c) (limits on disclosing former-client information)
• Colo. RPC 1.16 and 1.16A / Model Rule 1.16 (declining or terminating representation; client files and property)

Cases:

• In re Estate of Rabin, 2020 CO 77, personal representative not automatically entitled to a decedent's full legal file; disclosure limited
• Wesp v. Everson, 33 P.3d 191 (Colo. 2001), attorney-client privilege survives the client's death
• People v. Madera, 112 P.3d 688 (Colo. 2005), the privilege is personal to the client

Other references:

• ACTEC Commentaries on the Model Rules, R. 1.6 (5th ed. 2016): duty of confidentiality continues after death

See also

• ME Bar Op. 192: Deceased Client Information Requested by Third Persons
• IL Bar Op. 96-03: Disclosure of a Client's Death
• LACBA Op. 491: Destruction of Deceased Client Files
• RI Ethics Advisory Panel Op. 2000-8: Confidentiality of a Deceased Client's Intended Will Beneficiaries

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/CBA/72621/Opinion%20132%20revised%20-%206_12_21_FINAL%20EDITED.pdf