Could an estate lawyer testify about a deceased husband's information in a challenge to asset retitling?

Plain-English summary

A lawyer had represented a married couple in estate planning. The husband died before signing a new will, and his children challenged the earlier retitling of assets to the surviving wife. She wanted the lawyer to testify.

The opinion allowed disclosure of information obtained while representing the wife alone. For the deceased husband's confidential information, the lawyer first had to fully raise confidentiality with the court and obtain an order to disclose. If ordered, the lawyer should seek an order as specific and limited as possible; the opinion said disclosure could then occur without appealing.

Currency note

This 1995 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Could the lawyer disclose information from sole representation of the wife?

A: Yes, to the extent the information arose from that representation.

Q: What was required for the husband's confidential information?

A: The confidentiality issue had to be fully raised and the court had to order disclosure.

Q: Did the opinion require an appeal of the disclosure order?

A: No. It permitted disclosure after the order without appealing, while calling for an order as specific and limited as possible.

Background and rules framework

The opinion distinguished information from sole representation of the wife from confidential information of the deceased husband. It cited no numbered rule and made court consideration and an order prerequisites to disclosure of the husband's information.

See also

• Missouri Informal Op. 20040004: Decedent's will copy to family
• Missouri Informal Op. 950191: Guardian ad litem confidentiality

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950125/

Original opinion text

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

QUESTION: Attorney represented H and W in estate planning matters. H died before executing the new will which had been drafted. Some assets were re-titled prior to H´s death so they would pass to W. H´s children from a previous marriage have filed suit challenging the re-titling of the assets. W would like Attorney to testify. May Attorney testify? ANSWER: To the extent that information Attorney has arose out of representation in which Attorney was solely representing W, Attorney may disclose that information. However, Attorney may not disclose confidential information of H until Attorney has fully raised the issue of confidentiality and the court has ordered Attorney to disclose the information. If the court orders Attorney to disclose information, Attorney should seek to have the court issue an order as specific and limited as possible. Once the court issues an order for Attorney to disclose confidential information, Attorney may do so without appealing the court´s decision.