Can a lawyer disclose a deceased client's confidential information to a state fatality-review commission?
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This page answers the general question as of 2007. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A lawyer's client was murdered, and the lawyer received a statutory request for information from Montana's Fatality Review Commission, which under section 2-15-2017, MCA, examines domestic-violence fatalities to recommend prevention policies. The question is whether the lawyer may comply without violating the duty of confidentiality to the deceased client. The committee answers yes.
The committee starts from the premise that confidentiality survives the client's death and that Rule 1.6 reaches all information relating to the representation. It identifies two paths to the same result. First, Rule 1.6(a) permits disclosure "impliedly authorized to carry out the representation," and other jurisdictions allow disclosure for a deceased client where it furthers the client's interests. Second, and more directly, Rule 1.6(b)(4) permits disclosure "to comply with other law or a court order." Because the fatality-review statute carries its own confidentiality protections (the Commission's meetings, proceedings, and records are confidential and shielded from subpoena and discovery absent judicial review), the committee concludes the lawyer need not fight the request or insist on a court order before disclosing.
The committee emphasizes that Rule 1.6's disclosure provision is permissive, not mandatory: the lawyer may use discretion, may require a court order if the lawyer believes one appropriate, and may refuse to participate unless ordered by a court. It expressly declines to reach whether a lawyer may sit on the Commission to review a fatality involving the lawyer's own former client.
In practice
Under this opinion, a Montana lawyer who receives a statutory Fatality Review Commission request about a deceased client may disclose responsive confidential information under Rule 1.6(b)(4) without a court order, because the statute itself protects the information. Per the opinion, disclosure is permissive: the lawyer retains discretion, may require a court order, and may decline to participate absent one.
Common questions
Q: May a lawyer give a deceased client's confidential information to the Fatality Review Commission?
A: Yes. The opinion concludes Rule 1.6(b)(4) permits disclosure to comply with "other law," and the statute's own confidentiality protections mean the lawyer need not demand a court order.
Q: Is the lawyer required to disclose?
A: No. The opinion stresses Rule 1.6's disclosure provision is permissive, not mandatory; the lawyer may use discretion and may require a court order before disclosing.
Q: Does confidentiality end when the client dies?
A: No. The opinion treats confidentiality as surviving the client's death, with disclosure here permitted only because Rule 1.6(b)(4) and the statute apply.
Q: Did the committee decide whether the lawyer may serve on the Commission reviewing a former client's death?
A: No. The committee expressly declined to reach that question.
Background and rules framework
The opinion interprets Rule 1.6 (Confidentiality of Information; Model Rule 1.6), particularly the 1.6(b)(4) exception for disclosure to comply with "other law or a court order." The opinion notes Montana's confidentiality rule then contained fewer exceptions than the ABA Model Rule. The governing statute is section 2-15-2017, MCA.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.6 / Mont. R. Prof. Cond. 1.6(a), 1.6(b)(4) (confidentiality; disclosure to comply with other law)
Statutes:
- Section 2-15-2017, MCA (Fatality Review Commission)
Other authority cited:
- ABA/BNA Lawyers' Manual on Professional Conduct
- Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering (3rd ed. 2001)
See also
- MT Ethics Op. 890301: Confidentiality When Accused by a Client
- ABA Formal Op. 00-417: Settlement Limits on Lawyers
Source
- Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
- Original PDF: https://www.montanabar.org/Portals/MONTANA/070523.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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