After a client dies, can a Kentucky lawyer reveal the client's confidential information or waive the attorney-client privilege?

Plain-English summary

The opinion answers two questions about a deceased client. First, whether a lawyer may reveal information relating to the representation after the client's death: yes, if revealing it is reasonably believed necessary to accomplish one of the purposes of the representation, citing comments to SCR 3.130(1.2) and SCR 3.130(1.6). Second, whether the lawyer may assert or waive the attorney-client privilege on the deceased client's behalf: yes, citing the comment to Rule 1.6 and KRE 503(c).

The opinion grounds the first answer in a lawyer's implied authority to disclose information reasonably necessary to carry out the purposes of the representation. It uses the example of a client who hires a lawyer to prepare and execute a will: the client would expect the lawyer to disclose information needed to meet an attack on the will based on undue influence or lack of testamentary capacity, and the opinion states the lawyer not only may but should disclose relevant information. The same principle applies to a dispute between claimants over a document or transaction in which the decedent was represented, and the opinion notes KRE 503(d)(3) creates a privilege exception for relevant communications. The lawyer may assume the decedent would want the lawyer to do what is necessary to effectuate the client's objectives.

On the privilege, the opinion concludes that both the deceased client's attorney and the decedent's personal representative have standing to assert or waive it under KRE 503(c). If the personal representative and the attorney disagree about waiver or assertion, the court will decide who prevails.

In practice

Under this opinion, a Kentucky lawyer holding a deceased client's confidences may, and in the will-defense scenario should, disclose information reasonably necessary to carry out the representation's purposes, drawing on the lawyer's implied authority under Rule 1.2(a) and the disclosure rule of Rule 1.6(a). The opinion treats both the lawyer and the personal representative as having authority over the privilege and leaves any conflict between them to the court.

Common questions

Q: Can a lawyer disclose a deceased client's information to defend the client's will?

A: Yes. The opinion states a client who hired a lawyer to prepare a will would expect disclosure of information needed to meet an undue-influence or testamentary-capacity challenge, and the lawyer not only may but should disclose relevant information.

Q: Who can waive the attorney-client privilege after the client dies?

A: The opinion concludes both the deceased client's attorney and the decedent's personal representative have standing to assert or waive the privilege under KRE 503(c).

Q: What if the lawyer and the personal representative disagree about waiving the privilege?

A: The opinion says if they disagree about waiver or assertion, the court will decide who prevails.

Background and rules framework

The opinion interprets Kentucky's confidentiality rule, SCR 3.130(1.6), and the scope-of-representation rule, SCR 3.130(1.2), reading the lawyer's authority to disclose as flowing from the implied authorization to carry out the representation. It pairs the ethics rules with the Kentucky Rules of Evidence on privilege, KRE 503(c) (standing to claim the privilege) and KRE 503(d)(3) (exception for communications relevant to a dispute between claimants through the same deceased client).

Citations and references

Rules of Professional Conduct:

• MR 1.6 / SCR 3.130(1.6): confidentiality of information; comments 5 and 12.
• MR 1.2 / SCR 3.130(1.2): scope of representation; implied authority to carry out the representation.

Statutes:

• KRE 503(c): standing to claim the lawyer-client privilege.
• KRE 503(d)(3): privilege exception for a communication relevant to a dispute between claimants through the same deceased client.

See also

• ABA Formal Op. 479: 'Generally Known' Exception
• ABA Formal Op. 00-417: Settlement Terms Limiting Use of Information

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-451.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Formal Ethics Opinion
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-451
Issued: July 17, 2020

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rule and comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Revealing a client's confidential information after the client's death

Question 1: After the death of a client may an attorney reveal information relating to the representation of the client?

Answer: Yes, if revealing the information is reasonably believed to be necessary to accomplish one of the purposes of the representation. SCR 3.130(1.2), Comment 1 & SCR 3.130(1.6), Comments 5 & 12.

Question 2: After the death of a client, may an attorney assert (or waive) the attorney client privilege on behalf of the client?

Answer: Yes. SCR 3.130(1.6), Comment 12; KRE 503(c).

Discussion

Attorneys have implied authority to disclose information reasonably believed necessary to carry out the purposes of the representation. A client who hires an attorney to prepare and execute a will would expect the attorney to disclose information needed to meet an attack on the will based on undue influence or lack of testamentary capacity. The lawyer not only may, but should, disclose relevant information. The same principle applies to a dispute between claimants based on a document or transaction in which the decedent was represented by the lawyer. (KRE 503(d)(3) creates an exception to the attorney client privilege for relevant communications). The attorney may reasonably assume that the decedent would want the attorney to do what is necessary to effectuate the client's objectives.

Both the attorney of a deceased client and the personal representative of the decedent have standing to assert (or waive) the attorney client privilege. KRE 503(c). The personal representative and the attorney for the decedent might disagree about the attorney client privilege waiver or its assertion; if they disagree, the court will decide who prevails.

[Footnote 1: See Rule 1.2(a) ... A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . , and Rule 1.6(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (Emphasis added.)]

Note To Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. This Rule provides that formal opinions are advisory only.