Could a lawyer give an incapacitated estate client's videotape to an attorney in fact and disclose it after the client's death?

Plain-English summary

A lawyer held a videotape the client made during estate planning, when competent, to explain feelings about relatives who might contest the plan. The client later became incompetent, and an attorney in fact acted under a durable power of attorney. The lawyer asked about giving the tape to that person during the client's life and disclosing it to relatives after death.

The opinion allowed transfer of physical custody to the attorney in fact while the client lived. On these specific facts, it allowed the lawyer to imply the client's consent under Rule 4-1.6 for disclosure after death. It expressed serious reservations about whether the attorney in fact could waive confidentiality after the client's death, pointing to the end of the power of attorney and section 404.710.6 and .7, RSMo 1984. Because the remaining issues were mainly legal rather than ethical, it gave no definite opinion on them.

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 tape be delivered to the attorney in fact during the client's life?

A: Yes, as physical custody of the videotape.

Q: What did the opinion say about disclosure after death?

A: It allowed implied client consent under Rule 4-1.6 on the specific facts presented.

Q: Did it definitively authorize the attorney in fact to waive confidentiality after death?

A: No. It expressed serious reservations and declined a definite opinion on the legal questions.

Background and rules framework

The opinion applied Rule 4-1.6 to disclosure of a former estate-planning client's videotape and distinguished custody, implied client consent, and an attorney in fact's authority. It treated the last question as involving legal issues beyond a definite ethics answer.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-1.6

Statutes:

• Section 404.710.6 and .7, RSMo 1984 (cited for limits on testamentary authority)

See also

• Missouri Informal Op. 950256: Deceased-client medical records
• Missouri Informal Op. 20010154: Power of attorney and deceased-client subpoena

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950244/

Original opinion text

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

QUESTION: Attorney did estate planning work for a client who was competent when the work was done but is not competent now. An individual is serving as attorney in fact under a durable power of attorney. The client made a video tape at the time the estate planning work was done to express the client´s feelings about certain relatives who were likely to contest the estate plan. May Attorney turn the video tape over to the attorney in fact while the client is alive? May Attorney discuss or show the video tape to the relatives after the client dies based upon consent by the attorney in fact? ANSWER: Attorney may give physical custody of the videotapes to the attorney in fact while the client is alive. Under these specific circumstances, Attorney may imply the client´s consent under Rule 4–1.6 to disclose the videotape after the client´s death. Serious reservations exist about the ability of the attorney in fact to waive confidentiality after the client is deceased. The reservations stem from the understanding that the durable power of attorney ceases upon the death of the principal. It would seem logical that actions authorized by the attorney in fact during the life of the principal which had not been acted upon prior to the principal´s death would no longer be authorized. Additionally, the language of section 404.710.6 and .7, RSMo 1984, indicates a lack of authority for the attorney in fact to act regarding testamentary matters. However, the issue Attorney has presented involves many legal issues rather than ethical issues. Therefore, no definite opinion can be given.