Ezel / Ethics Opinions / MOLEC

Can the parties in a will contest waive a deceased client’s confidentiality so the drafting lawyer can testify?

Short answer No. The opinion says the litigants lack standing to waive confidentiality. The lawyer may disclose the information under a limited and specific court order after confidentiality is fully presented.
Bar
MOLEC
Issued
2004

Apply this to your situation

This page answers the general question as of 2004. Ask about yours and see what the current Missouri Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2004
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
How much weight this carries: Under Missouri Supreme Court Rule 5.30, formal opinions are binding; informal opinions are advisory. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The lawyer who drafted and amended a deceased client’s will was asked to testify about the client’s competence in a will contest. Both litigants sought a court order waiving privilege.

The opinion says the parties lack standing to waive confidentiality under Rule 4-1.6. The lawyer may disclose information if the court orders it after confidentiality has been fully presented, and the lawyer should seek a limited, specific order.

In practice

The opinion refuses to treat the parties’ joint request as a waiver of the deceased client’s confidentiality and directs the issue to a court order.

Common questions

Q: Can both litigants waive the deceased client’s confidentiality?

A: No. The opinion says they lack standing to do so.

Q: When may the lawyer testify about confidential information?

A: If ordered by a court after the confidentiality issue is fully presented.

Q: How broad should the court order be?

A: The opinion says the lawyer should seek an order as limited and specific as possible.

Background and rules framework

The opinion applies Rule 4-1.6 confidentiality to the deceased will-drafting client’s information.

Citations and references

Missouri Rules of Professional Conduct:

  • Rule 4-1.6

See also

Source

Original opinion text

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

QUESTION: Attorney represented decedent in preparation of her Last Will and Testament, which she later amended. The Will is being challenged and the Plaintiff and the Defendant are submitting to the court a joint application for a court order waiving privilege. Attorney’s testimony is necessary to show that the decedent was competent at the time she prepared her Will. Do the Plaintiff and Defendant have standing? May Attorney waive the privilege and testify?

ANSWER: The parties to the litigation do not have standing to waive the confidentiality of information that Attorney may have. Attorney has a duty to maintain confidentiality under Rule 4–1.6. However, Attorney may disclose the information if ordered to do so by a court after the issue of confidentiality has been fully presented. Attorney should seek to have the order as limited and specific as possible.

What do the rules say today, for your facts?

This opinion is from 2004. Ezel checks the current Missouri Rules of Professional Conduct against your situation and cites the rules it relies on.

Opens in Ezel Pro.

  • Checks the law as it stands today, not only this page
  • Cites every source it relies on, so you can verify it
  • Chat, drafting and research in one workspace