After a client dies, can the lawyer release the client's will-execution file during a will contest when no estate representative has been appointed?

Plain-English summary

A lawyer asked whether she could release her file on a deceased client's will execution to "the estate's attorney" while a will contest was pending, where the Probate Court had appointed no personal representative or other fiduciary. The opinion concludes she may not, absent a court order.

The opinion grounds the answer in Rule 1.6: a lawyer must safeguard confidential information relating to a representation, and that obligation continues after the relationship ends and survives the client's death (Rule 1.6, Comment 20). Quoting In re John Doe Grand Jury Investigation, the opinion explains that the privilege belongs to the client and can be waived only by the client or, in some instances, the executor or administrator of the client's estate.

Because no fiduciary had yet been appointed, the opinion reasons there was no one with power to waive the deceased client's privilege or consent to disclosure. The opinion notes that although a lawyer seeking probate of the will represented the petitioner, there was as yet no "lawyer for the estate." The committee concludes that, even though the interests of the will proponent and the decedent may be aligned, the lawyer must protect the client's confidential information and may not release the file until an appointed fiduciary consents or a court orders disclosure, while noting the lawyer might have a limited ability to testify about the circumstances of the will's execution.

In practice

Under this opinion, releasing a deceased client's file to a will proponent during a contest is prohibited where no personal representative or other fiduciary has been appointed, because no one yet holds the power to waive the client's privilege or consent to disclosure. The opinion makes the duty of confidentiality survive the client's death under Rule 1.6 and its Comment 20.

The opinion holds that the lawyer may release the file only on the consent of an appointed personal representative or other fiduciary, or under a court order. It distinguishes the lawyer's potential ability to testify, when called, about the circumstances of the will's execution from any release of the files themselves.

Common questions

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

A: No. The opinion concludes the Rule 1.6 obligation survives the client's death, citing Comment 20, so the lawyer must continue to protect the deceased client's confidential information.

Q: Why can't the lawyer give the file to the estate's attorney?

A: The opinion reasons that with no personal representative or fiduciary appointed, there is no one empowered to waive the client's privilege or consent to disclosure, and the petitioner's lawyer is not yet a "lawyer for the estate."

Q: Is there any way to obtain the file?

A: Per the opinion, the file may be released on the consent of an appointed personal representative or other fiduciary, or pursuant to a court order.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.6 (confidentiality of information), including Comment 20 (duty continues after the client's death) and the definition of "confidential information" in Comments 2, 3, and 3A, which includes information protected by the attorney-client privilege. Rule 1.6 corresponds to ABA Model Rule 1.6. The opinion situates the privilege-waiver question in Massachusetts probate law on who may act for an estate.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / Mass. R. Prof. C. 1.6 (confidentiality; survival after death, Comment 20)

Cases:

• In re John Doe Grand Jury Investigation, 408 Mass. 483 (1990), only the client or the estate's executor or administrator may waive the privilege
• Phillips v. Chase, 201 Mass. 444 (1909), and Brooks v. Holden, 175 Mass. 137 (1900), waiver of a deceased client's privilege

See also

• MA Bar Ethics Op. 24-2: when client information in a public record is still confidential
• ABA Ethics Op. 471: surrendering papers and property to a former client

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2017-opinion-17-3/opinion-17-3