If a deceased client's personal representative waives the attorney-client privilege and asks for confidential information, must the lawyer disclose it?

Plain-English summary

Bar Counsel asked whether it violates former Maine Bar Rule 3.6(h) for an attorney to disclose a deceased client's confidential information to the client's court-appointed personal representative (PR), where the PR requests the information and cites Maine Rule of Evidence 502(c) as authority to waive the lawyer-client privilege on the decedent's behalf. Rather than give an unequivocal answer, the Commission sets out a framework.

The opinion explains that Rule 3.6(h) requires an attorney to refuse to disclose three categories of client information: information privileged under the rules of evidence, information the client asked to be kept confidential, and information whose disclosure would be detrimental to the client. The rule provides two safe harbors permitting disclosure: when authorized to carry out the representation, or as required by law or order of the court. Under Maine Rule of Evidence 502(c), the privilege may be claimed by the personal representative of a deceased client, and the lawyer is presumed to have authority to claim the privilege, but only on the client's behalf.

Where the PR chooses to waive rather than claim the privilege, the opinion concludes the attorney may not rely exclusively on the PR's waiver but must conduct an independent analysis of the attorney's own obligations under Rule 3.6(h). In many cases the disclosure will fall within the first safe harbor, for example disclosing a will's execution or the decedent's testamentary intent, which ordinarily furthers the representation (citing In re Greene's Estate). But if the attorney believes the information would not further the client's purpose or would be detrimental to a material interest of the client (for example, information the client sought to keep unqualifiedly confidential, or information that would embarrass the client), the attorney may disclose only as required by law or by court order. In that situation the only safe harbor is a court order, which the PR seeking disclosure would likely have to obtain.

In practice

Under the former Maine Bar Rules in effect when the opinion issued (the confidentiality duty has since been carried forward in Maine Rule of Professional Conduct 1.6, with duties to former clients in Rule 1.9), the opinion holds that a personal representative's waiver of the attorney-client privilege does not by itself authorize the lawyer to disclose a deceased client's confidential information. The opinion holds the lawyer must independently analyze the confidentiality duty: where disclosure furthers the representation, such as a will's execution or testamentary intent, it ordinarily falls within the safe harbor for carrying out the representation; where disclosure would harm a material interest of the client or concerns information the client asked to keep confidential, the lawyer may disclose only as required by law or court order. The opinion frames a court order as the remaining safe harbor in the latter situation.

Common questions

Q: Does a personal representative's privilege waiver require the lawyer to hand over a deceased client's confidences?

A: No. The opinion concludes the lawyer may not rely exclusively on the PR's waiver and must independently analyze the lawyer's own confidentiality obligations under Rule 3.6(h).

Q: When can the lawyer disclose at the PR's request?

A: When the disclosure falls within a safe harbor. The opinion states disclosure that furthers the representation, such as information about a will's execution or the decedent's testamentary intent, ordinarily qualifies under the "carry out the representation" safe harbor.

Q: When must the lawyer withhold the information?

A: When the attorney believes disclosure would not further the client's purpose or would be detrimental to a material interest of the client. The opinion states that in that case the lawyer may disclose only as required by law or by court order.

Q: Who would seek the court order?

A: The opinion observes that because the PR is the one seeking disclosure, the PR will likely be the one seeking the court order compelling it.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.6(h), the confidentiality duty, read together with Maine Rule of Evidence 502(b) and (c) on the attorney-client privilege and who may claim or waive it for a deceased client. The confidentiality duty corresponds to ABA Model Rule 1.6, and the continuing duty to a deceased former client to Model Rule 1.9(c). The opinion relies on In re Greene's Estate, 102 Me. 455, 67 A. 317 (1907).

Citations and references

Rules of Professional Conduct:

• Model Rules 1.6, 1.9(c)
• Maine Bar Rule 3.6(h)

Rules of Evidence:

• Me. R. Evid. 502(b), 502(c) (attorney-client privilege; claim by personal representative of a deceased client).

Cases:

• In re Greene's Estate, 102 Me. 455, 67 A. 317 (1907), personal representative may waive a decedent's privilege to protect the estate.

See also

• NY State Bar Op. 1084: Disclosing a Deceased Client's Statement Exonerating a Co-Defendant
• NY State Bar Op. 1078: Confirming No Will to a Former Client's Son
• ABA Formal Op. 02-426: Lawyer Serving as Fiduciary for Estate or Trust

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=86898

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: June 20, 2007

Question

Bar Counsel has asked whether it is a violation of M. Bar R. 3.6(h) for an attorney to disclose confidential information of a deceased client ("Decedent") to the Decedent's court-appointed Personal Representative ("PR") in circumstances where the PR has requested the information, citing M. R. Evid. 502(c) as the source of authority for waiving the lawyer-client privilege on behalf of the Decedent.

Opinion

Like many questions that are presented to this Commission, Bar Counsel's question leads us to set forth a framework for guiding attorneys in their conduct, rather than to provide an unequivocal answer. The Maine Code of Professional Responsibility ("Code") sets forth the confidentiality obligations of an attorney to a client in M. Bar R.3.6(h):

• Except as permitted by these rules, or when authorized in order to carry out the representation, or as required by law or by order of the court, a lawyer shall not, without informed consent, knowingly disclose or use information (except information generally known) that:

(i) Is protected by the attorney-client privilege in any jurisdiction relevant to the representation;

(ii) Is information gained in the course of representation of a client or former client for which that client or former client has requested confidential treatment;

(iii) Is information gained in the course of representation of the client or former client and the disclosure of which would be detrimental to a material interest of the client or former client. . . .

The Rule recognizes that attorneys are obligated to refuse to disclose three categories of client information: (1) information that would be considered privileged under applicable rules of evidence; (2) information that may not be privileged but that the client has asked to be kept confidential; and (3) information that would be detrimental to the client if it were disclosed. Notwithstanding this broad prohibition, however, the Rule provides two safe harbors that allow attorneys to disclose information "when authorized to carry out the representation" or "as required by law or order of the court." Id.

The general privilege provided by M. R. Evid. 502(b) permits "[a] client . . . to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client," provided that those communications are made between and among a select group of individuals, including "the client or the client's representative and the client's lawyer or the lawyer's representative." Me. R. Evid. 502(b).

For the purposes of the Rules of Evidence, "[t]he privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association or other organization, whether or not in existence." M. R. Evid. 502(c). Recognizing that a client's attorney may be in the best position to assess the risks and benefits of claiming the privilege on the client's behalf and perhaps recognizing the ethical obligations imposed upon attorneys by the provisions of M. Bar R. 3.6(h) of the Maine Code of Professional Responsibility, the Rules of Evidence also provide that "[t]he person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client." Id.

In the situation presented by the Question, the PR has decided not to "claim" the attorney-client privilege on behalf of the Decedent, but has instead decided to waive the privilege. In such a situation, we believe the attorney from whom the confidential information is sought may not rely exclusively upon the waiver by the PR, but must undertake an independent analysis pursuant to M. Bar R. 3.6(h) as to his or her own obligations with respect to the requested disclosure.

In many cases, the attorney's disclosure of information at the request of a PR will fall within the first safe harbor of M. Bar R. 3.6(h). For example, disclosure of information regarding a will's execution or a decedent's testamentary intent would ordinarily further the attorney's representation of the client. See In re Greene's Estate, 102 Me. 455, 460, 67 A. 317, 319 (1907) (holding that a PR may waive the attorney-client privilege on behalf of a decedent, because the PR is interested in the protection of the decedent's estate and "would consent to the waiver of the privileged communication only for the purpose of securing that end").

If, however, the attorney believes that the information sought to be disclosed would not further the client's purpose or would be detrimental to a material interest of the client, the attorney may waive the privilege only as required by law or by court order. Thus, despite a PR's waiver of the attorney-client privilege, the attorney may still be ethically obligated to claim the privilege on behalf of his former client if, for example, the information had been specifically sought to be kept unqualifiedly confidential by the client or if disclosure of the information would embarrass or otherwise be detrimental to a material interest of the client. See M. R. Evid. 502(c). The only safe harbor available to the attorney in that case would be a court order allowing disclosure of the information requested by the PR. See M. Bar R. 3.6(h)(1). Because the PR is the one seeking disclosure of the information, the PR will likely be the one seeking the court order compelling disclosure.