Ezel / Ethics Opinions / MOLEC

May a lawyer produce a deceased client's files and testimony in response to a subpoena without a court order addressing confidentiality?

Short answer No. The opinion permits disclosure only under a court order after confidentiality is fully presented, and says the order should be as specific and limited as possible.
Bar
MOLEC
Issued
2006

Apply this to your situation

This page answers the general question as of 2006. 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 2006
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 had prepared an agreement for a deceased client and received a subpoena for deposition testimony and files in litigation involving the estate. The lawyer asked how to present confidentiality to the court.

The opinion permits disclosure only under a court order after the confidentiality issue is fully presented. It says the order should be as specific and limited as possible. The lawyer may coordinate with other counsel on motions and stipulate to facts other than the confidential information. Attendance at the hearing is unnecessary if another lawyer fully presents confidentiality, although the opinion says attendance is probably advisable in case the court has questions.

In practice

The opinion ties disclosure of the deceased client's information to a court order after full presentation of confidentiality. It allows the lawyers to coordinate how that issue reaches the court.

Common questions

Q: Is the subpoena alone enough to disclose the files?

A: No. The opinion requires a court order after the confidentiality issue is fully presented.

Q: Must the lawyer personally file a motion?

A: The opinion says the lawyers may work out who files a motion to quash, for a protective order, or to compel.

Q: Must the lawyer attend if another lawyer presents the issue?

A: Not necessarily, if the lawyer knows the confidentiality issue will be fully presented; the opinion says attendance is probably advisable if the court has questions.

Background and rules framework

The opinion addresses confidentiality of a deceased client's information in response to a subpoena. The published text cites no numbered rule.

See also

Source

Original opinion text

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

QUESTION: Attorney prepared an agreement for a client who is now deceased. Litigation is pending between the estate of the deceased, and various entities and heirs of the deceased. Attorney provided copies of the agreement to each attorney involved in the litigation. Attorney has since been served with a subpoena to have a deposition taken and to produce all files and documentation regarding the deceased. It is Attorney’s understanding that Attorney may only disclose the information if a court orders Attorney to do so after the issue of confidentiality has been fully raised. What should Attorney do to present the issue of confidentiality to the court? Is it Attorney’s responsibility to initiate a proceeding to obtain the court order? If the other attorneys involved in the litigation present the issues to the court, is Attorney required to be present at the hearing?ANSWER: Attorney can only provide the information pursuant to a court order after the issue of confidentiality has been fully presented. Attorney should seek to have such an order as specific and limited as possible.There are many ways in which the issue can be presented to the court. It is permissible for Attorney to cooperate with the other attorneys and parties involved and to stipulate to facts, other than those related to the confidential information at issue. Attorney and the other attorneys can work out whether Attorney will file a motion, such as a motion to quash or for a protective order, or whether they will file a motion to compel. This is an area in which a stipulation might establish the necessary facts without the need for going through the process of a deposition at which Attorney would refuse to answer.It will be necessary for Attorney to know that the issue of confidentiality has been fully presented. If Attorney knows that another attorney will be fully presenting that issue, it is not necessary for Attorney to be present. However, it is probably advisable for Attorney to be present in the event that the court has questions for Attorney.

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