May a deceased joint client’s former lawyer give estate planning and asset records to the executor’s lawyer without authorization?

Plain-English summary

A lawyer had represented a husband and wife on Medicaid and estate planning. After the husband died, the executor’s lawyer requested the planning papers and asset information without a release.

The opinion said no one could sign a release for the husband. The wife could consent to release joint information. Information solely concerning the husband required a court order after full presentation of confidentiality. The husband’s will could be disclosed without violating Rule 4-1.6.

Currency note

This opinion was issued in 2000, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Could the wife authorize release of all the records?

A: She could consent to joint information, but the opinion required a court order for information solely about the husband.

Q: Could counsel provide the will?

A: Yes. The opinion said that did not violate Rule 4-1.6.

Background and rules framework

The opinion expressly applied Rule 4-1.6 to the will and required a court order for the deceased client’s sole information.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

See also

• Missouri Informal Op. 20000157: Estate Asset Records

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000101/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney represented Husband and Wife, who had been married for several years. Wife entered nursing home last year and Husband and Wife sought Attorney´s counsel for assistance with Medicaid and estate planning. Husband recently died. Attorney received a written request from an attorney representing the executor of Husband´s estate. The attorney asked Attorney to provide the Medicaid and estate planning documents and all asset information that Attorney´s office has for Husband and Wife. The attorney´s request did not include an authorization for release of information. Attorney would like to reply to the attorney´s request to provide information, but does not want to violate the client´s attorney client privilege. Who has the authority to sign a release of information on behalf of Husband´s estate at this point? What documentation, other than the Husband´s will, is Attorney permitted to provide?

ANSWER: No one has the authority to sign a release for Husband. To the extent that the information Attorney has is joint, as to Husband and Wife, Wife may consent to the release of that information. To the extent that Attorney has information that pertains solely to Husband, Attorney may not release that information unless Attorney is ordered to do so by a court, after the issue of confidentiality has been fully presented. Attorney should seek to have any such order as specific and limited as possible. Attorney may disclose Husband´s will, without violating Rule 4–1.6.