Does a lawyer's duty of confidentiality survive the client's death, and may the lawyer cooperate with police or testify about what the deceased client told them?

Plain-English summary

A lawyer met with an elderly man about a new will. Because the client wanted nonstandard provisions, the lawyer chose to investigate further before drafting. The client was then murdered, and law enforcement contacted the lawyer about suspects and motives. The lawyer asked what confidentiality is owed a deceased client, whether cooperating with police breaches it, whether a court order is needed, and whether testifying in a will contest about facts learned in the representation would be a violation.

On the first question, the opinion applies Rule 1.6(a): a lawyer shall not reveal information relating to the representation unless the client gives informed consent, disclosure is impliedly authorized, or paragraph (b) permits it. Citing the comment that the duty continues after the relationship ends, the Committee concludes a deceased client is afforded all the confidentiality owed a living client.

On the second question, the opinion concludes the lawyer would breach that duty by cooperating with the investigation, because none of the six exceptions in Rule 1.6(b) authorizes volunteering the information. On the third and fourth questions, the opinion draws on its earlier Opinion No. 95: a lawyer may reveal confidences when required by law or court order, and is not subject to discipline for doing so, but is required by Canon 7 to raise the confidentiality, secrecy, and any attorney-client privilege in the proceeding where disclosure is sought, by motion for a protective order or other available means. It also notes a Wisconsin opinion (E-77-5) reaching a similar result on testifying about a deceased client's conversation under court direction.

In practice

Under this opinion, confidentiality owed a deceased client is the same as that owed a living client, so a lawyer may not voluntarily disclose the client's confidences to investigators. Disclosure is proper only where Rule 1.6(b) applies, where the personal representative or heirs consent, or where a court orders it; and where a court order is sought, the opinion directs the lawyer to assert the confidentiality and privilege first, by protective-order motion or other procedural means, before complying.

Common questions

Q: Does the attorney-client duty of confidentiality end when the client dies?

A: No. The opinion concludes a deceased client is owed the same confidentiality as a living client, relying on the comment to Rule 1.6 that the duty continues after the relationship terminates.

Q: Can a lawyer voluntarily help police investigating the client's death?

A: Per the opinion, no; cooperating would breach the duty because none of the six exceptions in Rule 1.6(b) authorizes the disclosure.

Q: Can a lawyer be disciplined for revealing confidences under a court order?

A: The opinion concludes the lawyer is not subject to discipline for revealing confidences under court order, but must first raise the confidentiality and privilege in the proceeding, for example by moving for a protective order.

Q: Who can consent to disclosure of a deceased client's confidences?

A: The opinion states the lawyer may reveal them with the consent of the client's personal representative or heirs.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.6 (confidentiality of information, the analog of Model Rule 1.6), quoting Rule 1.6(a) and the six categories of permitted disclosure in Rule 1.6(b), including Rule 1.6(b)(6) (to comply with other law or a court order). It supplements the rule with the procedural duty drawn from its earlier Opinion No. 95 to assert confidentiality and privilege when disclosure is compelled.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Mississippi Rule 1.6: confidentiality of information, including the paragraph (b) exceptions and the duty's survival after the representation ends.

Other opinions cited:

• Mississippi Ethics Opinion No. 95 (June 7, 1984): a lawyer may reveal confidences when required by law or court order, but must assert confidentiality and privilege in the proceeding.
• Wisconsin Bar Opinion E-77-5 (1979): a lawyer should not be disciplined for testifying about a deceased client's conversation if the court directs the testimony.

See also

• MS Bar Ethics Op. 124: Revealing Confidences by Court Order
• MS Bar Ethics Op. 257: Handling a Deceased Attorney's Client Files
• MS Bar Ethics Op. 213: Reporting a Non-Client's Probable Past Crime

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/119/
• Original PDF: https://www.msbar.org/media/1027/et_op_119-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 119

OF THE MISSISSIPPI BAR

RENDERED June 05, 1986

AMENDED April 06, 2013

CLIENT CONFIDENCES - An attorney owes a duty of confidentiality to a deceased client but may reveal confidences and secrets with consent of client's personal representative or heirs or when required by law or court order.

The Ethics Committee of The Mississippi Bar has been asked to render an opinion of the following inquiry:

An attorney has seen an elderly gentleman concerning preparation of a new will. Because the client insisted upon some rather nonstandard provisions, and because of client's age, the attorney elected to do some further investigation before preparing the document. Shortly thereafter, the attorney learned that the client had been murdered. The attorney has been contacted by law enforcement authorities regarding possible suspects and/or motives for the killing. The attorney requests an Opinion on the following issues:

(1) What duty of confidentiality, if any, is a deceased client?

(2) Is a duty of confidentiality breached by cooperating with law enforcement officials investigating the client's death?

(3) Is a court order necessary before doing so?

(4) In the event of a will contest, is it a violation of ethical standards for an attorney to testify as to facts learned through the attorney-client relationship?

As to the first question, Rule 1.6(a) of the Mississippi Rules of Professional Conduct (MRPC), provides that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b). The comment to Rule 1.6, MRPC, states that the duty of confidentiality continues after the client-lawyer relationship has terminated.
Accordingly, it is the opinion of the committee that a deceased client should be afforded all the duty of confidentiality owed to a living client.

In regard to the second question, the attorney would breach the duty of confidentiality by cooperating with law enforcement officials investigating the client's death. Rule 1.6(b), MRPC, lists six instances of what a lawyer may reveal:

A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

(6) to comply with other law or a court order.

Questions 3 and 4 would be answered by our Opinion No. 95, rendered June 7, 1984, which found that an attorney may reveal confidences or secrets of his client when required by law or court order. That Opinion gave the following guidance:

Rule 1.6(b)(6) provides that a lawyer may reveal confidences or secrets when required by law or court order. When a rule of law or a specific court order requires the revelation of the confidences or secrets, even though the lawyer may believe they have nothing to do with the pending litigation, he is required to make those disclosures and his revelations are not inconsistent with the requirements of the Rules of Professional Conduct.

It is the opinion of the committee that, while an attorney is not subject to disciplinary action for revealing confidences or secrets of a client under court order, he is nonetheless required by Canon 7 to raise the issue of the confidentiality or secrecy of the information, and any attendant attorney-client privilege, in the proceedings where the disclosure is sought and to actively assert this confidentiality, secrecy, or privilege, by motion for protective order or other available procedural means.

Also, the Wisconsin Bar Association's Opinion E-77-5, decided in 1979, decided the following concerning an attorney's testifying about a deceased client's conversation over appointment of a guardian: ". . . if the court decides however, that the attorney should testify about the conversation, the attorney should not be disciplined for revealing client confidences if he complies with the court's decision."