Could a former lawyer voluntarily send a deceased client’s planning file to the personal representative’s new lawyer?

Plain-English summary

A lawyer had prepared a deceased person’s will. The personal representative and new counsel sought that person’s estate planning file after ending the lawyer’s other services.

The opinion said Rule 4-1.6 confidentiality survived death. Without the deceased client’s express consent, the lawyer could not voluntarily turn over the file or advice information. If subpoenaed, disclosure required a court order after the legal and factual confidentiality issues were fully presented.

Currency note

This opinion was issued in 1999, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Did the personal representative’s request itself authorize disclosure?

A: No. The opinion barred voluntary disclosure absent the deceased client’s express consent.

Q: What if the lawyer was subpoenaed?

A: A court order after full presentation of confidentiality issues was required.

Background and rules framework

The answer expressly applied Rule 4-1.6 after the client’s death.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

See also

• Missouri Informal Op. 20000165: Deceased Clients File

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/990146/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney prepared a will for a person who has now passed away. The will was filed in probate, but an estate was not opened. The personal representative has now terminated Attorney´s services. The personal representative and the new attorney have requested all of the personal representative´s legal matters be turned over to the new attorney. They have also requested the estate planning file of the deceased be turned over to the new attorney. What should Attorney do about the estate planning file of the deceased?

ANSWER: The duty of confidentiality under Rule 4–1.6 survives death. Attorney may not voluntarily provide the estate planning file, or information about the advice provided to the deceased family member, unless that person expressly consented to such disclosure. If Attorney is subpoenaed to provide the information, Attorney may only do so after the factual and legal issues related to confidentiality are fully presented to the court and the court orders Attorney to disclose the information.