When can a lawyer disclose a deceased client's confidential information?

Plain-English summary

The opinion addresses when an attorney may disclose confidential information concerning a deceased client. Under HRPC 1.6(a), all information relating to the representation of a client is confidential, and a lawyer may not reveal it unless the client consents after consultation, except for disclosures impliedly authorized to carry out the representation and as stated in paragraphs (b) and (c). The opinion notes that client consent is not possible once the client has died.

The opinion concludes that, under HRPC 1.6, an attorney may reveal confidential information when disclosure is impliedly authorized to carry out the representation. In determining what disclosures are necessary, the attorney may consider the client's intentions; for example, if the attorney reasonably and in good faith determines that confidentiality should be waived to effectuate the deceased client's intended estate plan, the attorney would be permitted and obligated to make that disclosure. A lawyer may also disclose under HRPC 1.6(c)(7) to the extent strictly necessary to comply with other law, fiduciary obligations, or court orders.

The opinion notes that it does not address the applicability of the attorney-client privilege to communications with a deceased client, but observes that the duty of confidentiality is broader than the privilege because it covers all information relating to the representation, not just confidential communications. A client's heir or personal representative may have authority to waive the privilege but has no authority to waive HRPC 1.6 confidentiality, and even if the privilege is inapplicable in litigation involving the deceased client, confidentiality issues may remain.

In practice

Under this opinion, a Hawaii lawyer holding a deceased client's confidences cannot treat death as ending the duty of confidentiality or assume an heir or personal representative can release it. The opinion holds that disclosure is proper only when impliedly authorized to carry out the representation, with the client's likely intentions (such as effectuating an estate plan) guiding what is necessary, or when required by court order or other law under HRPC 1.6(c)(7). The opinion separates this ethical duty from the evidentiary attorney-client privilege, which is narrower and may be waivable by others.

Common questions

Q: Does the duty of confidentiality end when the client dies?

A: No. The opinion concludes the duty survives death; consent is no longer possible, so disclosure turns on what is impliedly authorized to carry out the representation or required by law.

Q: Can a lawyer disclose to carry out the deceased client's estate plan?

A: The opinion concludes that where the attorney reasonably and in good faith determines confidentiality should be waived to effectuate the deceased client's intended estate plan, the attorney would be permitted and obligated to disclose.

Q: Can the client's heir or personal representative waive the lawyer's confidentiality duty?

A: Per the opinion, an heir or personal representative may be able to waive the attorney-client privilege but has no authority to waive the broader HRPC 1.6 confidentiality.

Background and rules framework

The opinion interprets HRPC 1.6(a) (confidentiality of all information relating to the representation, with the implied-authorization exception) and HRPC 1.6(c)(7) (disclosure strictly necessary to comply with other law, fiduciary obligations, or court orders), citing HRPC 1.6 Comments [3] and [14]. These correspond to Model Rule 1.6.

Citations and references

Rules of Professional Conduct (Hawaii; cf. Model Rules):

• HRPC 1.6(a) (confidentiality; implied authorization) (cf. Model Rule 1.6(a))
• HRPC 1.6(c)(7) (disclosure to comply with law, fiduciary duties, or court order) (cf. Model Rule 1.6(b))

See also

• ABA Formal Op. 92-369: Disposition of a Deceased Sole Practitioner's Files
• Alabama Ethics Op. 2010-03: Representation of an Estate and Client Identity

Source

• Landing page: https://dbhawaii.org/legal-ethics-advice-for-hawaii-lawyers/
• Original PDF: https://dbhawaii.org/wp-content/uploads/FO_38.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. Disciplinary Board of the Hawai#i Supreme Court 201 Merchant Street, Suite 1600 Honolulu, Hawai#i 96813 Telephone (808) 599-1909 www.odchawaii.com Chairperson

Hon. Clifford L. Nakea (Ret.)
Vice Chairperson

Hon. Leslie A. Hayashi
Secretary

Nathan J. Sult, Esq.
Treasurer

Joy M . M iyasaki, Esq.
Filing Clerk

Board M embers
James L. Branham, Esq.
Gary M . Farkas, Ph.D., M BA
Diane D. Hastert, Esq.
Philip D. Hellreich, M .D.
Shelton G.W. Jim On, Esq.
Harrilynn K. Kame#enui, Esq.
Hon. Evelyn B. Lance (Ret.)
Philip H. Lowenthal, Esq.
Jeffrey P. M iller, Esq.
Carolene N. Kawano Neely, M .S.W., M .Ed. Jeffrey S. Portnoy, Esq. Irwin J. Schatz, M .D. Judith A. Schevtchuk, Esq. Asst. Chief Eugene Uemura, (Ret.), M A.Ed.

Faye F. Hee
Board Counsel

Bradley R. Tamm, Esq.

FORMAL OPINION NO. 38
This Opinion addresses the following issue: Under what circumstances may an attorney disclose confidential information concerning a deceased client? HRPC 1.6(a) provides that all information relating to the representation of a client is deemed to be confidential: A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). Obtaining client consent is, of course, not possible if the client is deceased. Under HRPC 1.6, however, attorneys may reveal confidential information when disclosure has been impliedly authorized in order to carry out the representation. In determining what disclosures are necessary to carry out the representation of a deceased client, the attorney may consider the intentions of the client. For example, if an attorney reasonably and in good faith determines that confidentiality should be waived in order to effectuate the deceased clients' intended estate plan, the attorney would be permitted and obligated to make such disclosure. A lawyer may also disclose confidential client information under HRPC 1.6(c)(7) “to the extent strictly necessary to comply with other law, fiduciary obligations, or court orders.” See also HRPC 1.6, Comment [14].

The Disciplinary Board’s mission is to maintain the integrity of the legal profession and protect the public from professional misconduct by attorneys.

This opinion does not address issues relating to the applicability of the attorney-client privilege to communications with a now deceased client. In this respect, we note that the duty of confidentiality is broader than the attorney-client privilege because it covers all information relating to the representation of the client, not just matters communicated in confidence by the client. HRPC 1.6, Comment [3]. For example, a client's heir or personal representative may have the authority to waive the attorney-client privilege, but that person has no authority to waive the confidentiality protection of HRPC 1.6. Additionally, even if the attorney-client privilege is deemed inapplicable to litigation involving the deceased client, issues of confidentiality may still exist. In summary, an attorney may disclose confidential client information when that disclosure is impliedly authorized in order to carry out the representation. An attorney may also disclose confidential information if that disclosure is authorized by court order or other law. DATED:

Honolulu, Hawai#i, May 27, 1999
Bernice Littman
Chairperson, Disciplinary Board

UPDATED:

Honolulu, Hawai#i, March 19, 2015
_______
Hon. Clifford L. Nakea (Ret.)
Chairperson, Disciplinary Board