Could a lawyer provide deceased clients’ file information in response to a subpoena without a court order?

Plain-English summary

A subpoena sought a file containing information about two deceased former clients. The matter concerned possible misuse of a power of attorney.

The opinion said Rule 4-1.6 barred disclosure of information obtained while representing either client unless a judge ordered it after full presentation of legal and factual confidentiality issues. A prepared will or testamentary trust could be given to heirs if the lawyer believed that aligned with the deceased person’s goals. The answer distinguished rule confidentiality from the narrower evidentiary privilege.

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: Was the subpoena alone enough to release the file?

A: No. The answer required a judge’s order after confidentiality issues were fully presented.

Q: Could prepared testamentary documents go to heirs?

A: Yes, if the lawyer believed that was consistent with the deceased client’s goals.

Background and rules framework

The answer cited Rule 4-1.6 and distinguished professional confidentiality from statutory attorney-client privilege.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

See also

• Missouri Informal Op. 20000101: Estate Documents

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000165/

• 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 has been subpoenaed to produce a file that contains information regarding a deceased client. The children of the deceased are represented by counsel, but no estate was opened for the deceased client´s estate. The same file will contain information about another deceased client, the spouse. Attorney does not know if an estate has been opened for that client. The matter involves the possible misuse of a power of attorney by the holder of a power of attorney some time after the power was prepared. May Attorney disclose this information?

ANSWER: Under Rule 1.6 of Supreme Court Rule 4, the Rules of Professional Conduct, Attorney may not disclose any information Attorney obtained in the course of representing either deceased client. However, Attorney may provide a copy of any will or testamentary trust Attorney prepared, to the heirs of the deceased, if Attorney believes that would be consistent with the goals of the deceased. Attorney may only provide the information sought through the subpoena if Attorney is ordered to do so by a judge, after the legal and factual issues related to confidentiality have been fully presented. Confidentiality, under Rule 4–1.6, is broader than the evidentiary attorney-client privilege, which arises from statute. If the judge orders Attorney to provide information, Attorney should seek to have the order as specific and limited as possible.