May a lawyer give an unfinished trust draft and planning records to a deceased client’s family lawyer?

Plain-English summary

The client died before the lawyer completed a trust and other estate-planning documents. A lawyer for the family requested all related records.

The opinion bars disclosure absent a court order after Rule 4-1.6 confidentiality is fully presented. It distinguishes confidentiality from attorney-client privilege, noting that privilege survives death and that the court rather than the lawyer should decide any heir-related privilege exception. Without express consent, only documents clearly needed to effectuate the decedent’s intent, such as an executed will, may be disclosed.

In practice

The opinion puts disclosure of unfinished planning records before the court while allowing only clearly necessary intent-effectuating documents under its stated exception.

Common questions

Q: Can the lawyer release the unfinished trust draft on request?

A: No. The opinion requires a court order after full presentation of confidentiality.

Q: Does attorney-client privilege end at death?

A: No. The opinion says privilege survives death, citing Swidler & Berlin v. U.S.

Background and rules framework

The opinion applies Rule 4-1.6 to the deceased client’s planning information and cites Swidler & Berlin v. U.S. on privilege.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

Citations and references

Cases:

• Swidler & Berlin v. U.S., 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998)

See also

• Missouri Informal Op. 20040004: Will Copy to Family

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20030016/

Original opinion text

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

QUESTION: Client came to Attorney with a rough draft of a trust. Client provided Attorney with information Attorney needed to complete the trust document and some other estate planning. Client died before Attorney could prepare the documents. Attorney has received a request to produce all documents related to estate planning for Client to the attorney for Client’s family. What should Attorney do?

ANSWER: Attorney may not disclose any documents or information unless Attorney is ordered to do so by a court, after the issue of confidentiality under Rule 4–1.6 has been fully presented. If a court orders Attorney to disclose documents, information, or both, Attorney may do so. It is not necessary for Attorney to appeal such an order. The duty of confidentiality under Rule 4–1.6 is not the same as the attorney-client privilege, which is a narrower, evidentiary statute, although the terms are often used interchangeably. The attorney-client privilege survives death. Swidler & Berlin v. U.S., 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998).

Although there are cases that state that the privilege does not apply as between heirs of an estate in order to effectuate the intent of the decedent, those cases may be the basis for a judge to rule that an attorney should disclose information. They do not stand for the proposition that the attorney should be the one to decide whether the privilege applies. An attorney, in the absence of express consent from the decedent, may only disclose information or documents clearly necessary to effectuate the decedent’s intent, such as an executed will or other similar document.