Must a lawyer produce a deceased client's undistributed power of attorney under a subpoena?

Plain-English summary

A lawyer kept the original power of attorney prepared for a now-deceased client. An investigation led to a subpoena seeking it.

The opinion permits disclosure if the client gave consent while alive that covers these circumstances. Otherwise the document remains confidential and may be released only under a court order after confidentiality is fully presented. The opinion calls for a specific, limited order.

Currency note

This opinion was issued in 2001, 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: Does the subpoena itself permit disclosure?

A: No. Without prior client consent, the opinion requires a court order after full presentation of confidentiality.

Q: What type of order does the opinion seek?

A: One as specific and limited as possible.

Background and rules framework

The opinion applies continuing client confidentiality to an undistributed power of attorney after death but cites no numbered rule.

See also

• Missouri Informal Op. 20060004: Subpoena for Client Files

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20010154/

• 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 prepared a durable power of attorney for Client over a year ago. Client is now deceased. Attorney recently received a subpoena requesting the durable power of attorney. The original durable power of attorney is in Attorney’s file and was never distributed to anyone. Shortly after executing the document, Attorney was advised that the Division of Aging has probable cause to believe that X had financially exploited Client. The charges relate to forgery. Is Attorney required to provide the durable power of attorney? Attorney would like to cooperate, but understands that the attorney/client privilege continues after death.

ANSWER: If Client gave consent to disclosure of the Durable Power of Attorney while Client was alive, in a manner that would cover the current circumstances, Attorney may disclose it. If Client did not give such consent, the Power of Attorney is confidential. Attorney may only disclose it if 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.