May a Missouri lawyer subpoenaed to testify about a deceased former client's estate planning reveal information from that representation?

Plain-English summary

The opinion addresses a lawyer subpoenaed to testify in litigation between co-trustees about estate planning the lawyer performed for a client who later died. It says appearing or testifying pursuant to a subpoena is not prohibited in itself, but Rules 4-1.9(c) and 4-1.6 may severely restrict what the lawyer can reveal about the former representation.

The confidentiality duty survives the client's death and is broader than attorney-client privilege and work-product protection. Under the opinion, Rule 4-1.6 covers all information related to the representation regardless of its source. Disclosure therefore requires the former client's informed consent, implied authorization, or an exception in Rule 4-1.6(b).

The opinion distinguishes a subpoena from a court order. A subpoena alone does not require disclosure of client confidences. Before disclosure, the lawyer must assert all nonfrivolous claims that the order lacks legal authorization or that privilege or other law protects the information. If the court orders disclosure and no appeal is sought, the lawyer may comply under Rule 4-1.6(b)(4).

The committee does not decide whether other law independently permits disclosure, describing that as a legal question outside the Rules of Professional Conduct. When Rule 4-1.6(b) does permit disclosure, the opinion limits it to what the lawyer reasonably believes necessary for the specified purpose.

In practice

Under this opinion, service of a subpoena does not end a Missouri lawyer's confidentiality duty to a deceased former client. The lawyer's ability to answer questions about the former representation turns on informed consent, implied authorization, or a Rule 4-1.6(b) exception, not merely on being called as a witness.

The opinion treats a court order as distinct from the subpoena that precedes it. It requires the lawyer to assert all nonfrivolous objections before disclosure and, if disclosure is ultimately permitted, to reveal only what is reasonably necessary.

Common questions

Q: Does confidentiality end when the former client dies?

A: No. The opinion states that Rule 4-1.6 survives the client's death and cites Comment [17] and Missouri Informal Opinion 990146.

Q: Is a subpoena enough to permit disclosure of former-client information?

A: No. The opinion says a subpoena is not enough to require disclosure and that the lawyer must assert all nonfrivolous claims against disclosure.

Q: May the lawyer comply if the court orders disclosure?

A: Yes. If the court orders disclosure and an appeal is not sought, the opinion says the lawyer may comply under Rule 4-1.6(b)(4), subject to the limit that only information reasonably believed necessary may be revealed.

Q: Does attorney-client privilege define the full scope of Rule 4-1.6 confidentiality?

A: No. The opinion says confidentiality is much broader than privilege and work-product protection because it covers all information related to the representation, no matter its source.

Q: Does the opinion decide whether another law allows disclosure?

A: No. It identifies that as a question of law beyond the scope of the Rules of Professional Conduct and directs the lawyer to Comment [10] for guidance about a possible legal exception.

Background and rules framework

The former client had retained the lawyer for a declaration of trust and other estate planning. After the client's death, a dispute between two co-trustees led to litigation and a subpoena seeking the lawyer's testimony about the client's intent and estate plan.

Rule 4-1.9(c)(2) bars a lawyer from revealing information relating to a former representation except as the Rules permit. Rule 4-1.6(a) supplies the general confidentiality rule; Rule 4-1.0(e) defines informed consent; and Rule 4-1.6(b)(4) permits disclosure to the extent reasonably necessary to comply with other law or a court order. Comments [10] through [13] address legal exceptions, objections to compelled disclosure, and limiting what is revealed.

Citations and references

Missouri Rules of Professional Conduct:

• Rules 4-1.0(e), 4-1.6, 4-1.6(a), 4-1.6(b)(4), and 4-1.9(c)(2)
• Rule 4-1.6 Comments [3], [10], [11], [12], [13], and [17]

Other opinions cited:

• Missouri Informal Opinion 990146, confidentiality after a client's death
• Missouri Informal Advisory Opinions 20060004, 20010154, 2017-04, 2026-04, and 2026-06, compelled disclosure of client information

See also

• ABA Formal Op. 473: Subpoenas for Client Information
• Utah Ethics Op. 05-01: Subpoenaed Lawyer Testimony About a Former Client
• Rhode Island Op. 94-38: Subpoenaed Lawyer, Privilege, and Court Order

Source

• Landing page: Missouri Informal Opinion 2026-11

Original opinion text

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

Question: Ten years ago, Lawyer A created a declaration of trust for property for a client, Grantor, and named one of Grantor’s children, Child 1, as trustee. Lawyer A also did additional estate planning for Grantor. Five years ago, Lawyer B amended the declaration of trust to add another child of Grantor, Child 2, as a co-trustee with Child 1. Two years ago, Grantor passed away. A dispute arose between the co-trustees as to the property in the declaration of trust, and Child 1 sued Child 2. Lawyer A has been subpoenaed to testify as to Grantor’s intent as to the property in trust, as well as the rest of the estate plan. Would Lawyer A violate any Rules of Professional Conduct if Lawyer A sat for a deposition or testified pursuant to a subpoena at trial in the underlying litigation between Child 1 and Child 2?

Answer: The Rules of Professional Conduct do not prohibit Lawyer A, per se, from testifying during a deposition or at trial pursuant to subpoena in the underlying litigation, however, Rules 4–1.9(c) and 4–1.6 may severely restrict Lawyer A’s ability to testify to relevant issues in the underlying lawsuit. Rule 4–1.9 addresses a lawyer’s duty to former clients. Subsection (c)(2) provides that a lawyer who has formerly represented a client in a matter shall not reveal information relating to the representation except as permitted by the Rules of Professional Conduct. Rule 4–1.6(a), in turn, provides that a lawyer may not reveal information relating to the representation of a client unless the client gives the lawyer informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Rule 4–1.6(b).

Rule 4–1.6 survives the death of a client. See Comment [17] to Rule 4–1.6 and Missouri Informal Opinion 990146. The confidentiality provisions of Rule 4–1.6 are much broader than the substantive law issues of attorney-client and work product privileges. Confidentiality covers all information related to the representation, no matter its source.”[1] See Rule 4–1.6, Comment [3].

Thus, Rule 4–1.6 will prohibit Lawyer from revealing information about Grantor’s estate planning unless the disclosure was impliedly authorized, Granter gave informed consent to Lawyer to do so, or one of the Rule 4–1.6(b) exceptions apply.

Informed consent as used in Rule 4–1.6 is defined as the “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Rule 4–1.0(e).

Rule 4–1.6(b) provides that “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: …(4) to comply with other law or a court order.” Determining if there is “other law” that permits disclosure of the Grantor’s confidences is a matter of law and beyond the scope of the Rules of Professional Conduct. Lawyer A should consult Comment [10] to Rule 4–1.6 for additional guidance as to any possible exception at law and use independent professional judgment on this issue.

A subpoena is not enough to require disclosure of client confidences. Rather it must be a court order and Lawyer A must assert “all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.” Comment [11] to Rule 4–1.6. If the court orders the disclosure of client confidences and an appeal is not sought, Lawyer A may comply with the court’s order. See Comment [11] to Rule 4–1.6; See also Missouri Informal Advisory Opinions 20060004, 20010154, 2017–04, 2026–04, and 2026–06.

In the event that disclosure is permitted by Rule 4–1.6(b), Lawyer A should consult Comments [12] and [13] to Rule 4–1.6 for guidance on ensuring that the disclosure is only to the extent Lawyer A reasonably believes is necessary to accomplish the specified purpose.

[1] Related bodies of law address confidentiality through attorney-client privilege and the work-product doctrine, but interpretations of those principles are matters of law and beyond the scope of the Rules of Professional Conduct. See Rule 4–1.6, Comment [3].