Can the lawyer for a deceased client testify about the client's confidences in a will contest or other litigation over the estate?

Plain-English summary

An earlier opinion, RPC 206, holds that a lawyer may disclose a deceased client's confidential information to the personal representative of the estate but not to the heirs, relying on the duty of confidentiality that continues after a client's death. RPC 206 rests on the idea that a client impliedly authorizes release of confidences to the personal representative so the estate can be properly administered (Rule 1.6(d)(1), formerly Rule 4(c)(1)). RPC 206 did not address whether the lawyer may testify in a will contest or other estate litigation when the testimony would reveal client confidences.

The opinion concludes the lawyer may testify. If the personal representative calls the lawyer as a witness in the will contest, the lawyer may testify because the personal representative consents to the disclosure (Rule 1.6(d)(2)). The lawyer may also disclose confidences when required by law or court order (Rule 1.6(d)(3)).

If someone other than the personal representative calls the lawyer as a witness, the opinion concludes the lawyer may testify to relevant confidential information of the deceased client only where the lawyer determines that the attorney-client privilege does not apply as a matter of law, or where the court orders the lawyer to testify on that basis. The opinion states that RPC 206 remains an appropriate application of the duty of confidentiality under Rule 1.6 and is not changed by this opinion.

In practice

Under the North Carolina rule as it stood at the time of the opinion, the analysis turns on which confidentiality exception applies and who calls the lawyer. The opinion holds that the personal representative's act of calling the lawyer supplies consent under Rule 1.6(d)(2), and that a legal requirement or court order supports disclosure under Rule 1.6(d)(3).

Per the opinion, when a person other than the personal representative calls the lawyer, the lawyer may testify to the deceased client's confidences only if the attorney-client privilege does not apply as a matter of law or the court orders the testimony; the underlying duty of confidentiality continues after the client's death.

Common questions

Q: Can a lawyer testify about a deceased client's confidences in a will contest?

A: Yes, in the circumstances the opinion identifies. The opinion concludes the lawyer may testify when the personal representative consents by calling the lawyer, when required by law or court order, or, if called by another party, when the privilege does not apply or the court orders it.

Q: Does the personal representative calling the lawyer count as consent?

A: Yes. The opinion concludes that if the personal representative calls the lawyer as a witness, the personal representative consents to the disclosure under Rule 1.6(d)(2).

Q: What if a party other than the personal representative calls the lawyer?

A: The opinion concludes the lawyer may testify to relevant confidences only if the lawyer determines the attorney-client privilege does not apply as a matter of law, or the court orders the lawyer to testify on that basis.

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

A: No. The opinion treats the duty of confidentiality as continuing after death and reaffirms RPC 206 as an appropriate application of Rule 1.6, disclosure being allowed only through the rule's exceptions.

Background and rules framework

The opinion interprets Rule 1.6 (confidentiality of information, corresponding to Model Rule 1.6), specifically the disclosure exceptions in Rule 1.6(d): implied authorization to carry out the representation (Rule 1.6(d)(1)), client consent (Rule 1.6(d)(2)), and disclosure required by law or court order (Rule 1.6(d)(3)). It builds on the prior North Carolina opinion RPC 206 (disclosure of a deceased client's confidences to the personal representative).

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NC Rule 1.6 (confidentiality), Rule 1.6(d)(1) (implied authorization), Rule 1.6(d)(2) (consent), Rule 1.6(d)(3) (required by law or court order)

Other opinions cited:

• NC RPC 206: a lawyer may disclose a deceased client's confidences to the personal representative but not to the heirs.

See also

• NC State Bar 2011 FEO 1: Lawyer as Advocate and Witness
• NC State Bar 2016 FEO 4: Disclosing Confidential Information to Execute on a Fee Judgment
• ABA Formal Op. 92-369: Disposition of Deceased Sole Practitioners' Client Files and Property

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2002-formal-ethics-opinion-7/

Original opinion text

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

Inquiry:

RPC 206 rules that a lawyer may disclose the confidential information of a deceased client to the personal representative of the deceased client's estate but not to the heirs of the estate. The opinion relies upon the duty of confidentiality which continues after the death of a client. That duty prohibits the lawyer from revealing the client's confidences unless the disclosure is allowed by the exceptions to the duty of confidentiality set forth the Rules of Professional Conduct. (At the time of the adoption of RPC 206, the confidentiality rule was Rule 4. During the revision of the rules in 1997, the confidentiality rule was renumbered as Rule 1.6.) The opinion states:

[A] lawyer may reveal confidential information of a deceased client if the disclosure was impliedly authorized by the client during the client's lifetime as necessary to carry out the goals of the representation. Rule 4(c)(1) [now Rule 1.6(d)(1)]. It is assumed that a client impliedly authorizes the release of confidential information to the person designated as the personal representative of his estate after his death in order that the estate might be properly and thoroughly administered.

RPC 206 does not address whether the lawyer for a deceased client may testify in a will contest or other litigation about the distribution of the decedent's estate if such testimony will require the disclosure of client confidences. May the lawyer for a deceased client testify in such litigation?

Opinion:

Yes, if the personal representative calls the lawyer as a witness in the will contest, the lawyer may testify because the personal representative consents to the disclosure. See Rule 1.6(d)(2). Rule 1.6(d)(3) also permits a lawyer to disclose client confidences if required by law or court order. If someone other than the personal representative calls the lawyer as a witness, the lawyer may testify to relevant confidential information of the deceased client if the lawyer determines that the attorney/client privilege does not apply as a matter of law or the court orders the lawyer to testify on this basis.

RPC 206 continues to be an appropriate application of the duty of confidentiality as set forth in Rule 1.6 of the Revised Rules of Professional Conduct and is not changed by this opinion.