After a client dies, can the lawyer give the client's siblings copies of the client's earlier wills, or only to the estate's personal representative?

Plain-English summary

The opinion addressed a lawyer who still held earlier wills of a client who had died with a recent will that omitted his brothers and sisters. The siblings asked the lawyer for copies of the earlier wills. The question was the lawyer's ethical obligation in responding.

The opinion concluded that the lawyer may disclose a deceased client's confidential information only to the personal representative of the client's estate. The duty of confidentiality continues after a client's death (CPR 268 and the Comment to Rule 4), and a lawyer may reveal a deceased client's confidential information only through the exceptions in Rule 4(c). Under Rule 4(c)(1), a lawyer may reveal information impliedly authorized during the client's lifetime as necessary to carry out the goals of the representation, and the opinion assumed a client impliedly authorizes release to the person designated as personal representative so the estate can be properly administered. Unless disclosure to the personal representative (or to a third party at the representative's instruction) would be clearly contrary to the goals of the original representation or to express instructions the client gave before death, the lawyer may reveal the information to the personal representative and to third parties at the representative's direction. To the extent its earlier opinion CPR 268 implied that a lawyer may reveal a deceased client's confidential information to the decedent's heirs in addition to the personal representative, the opinion specifically overruled CPR 268.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a North Carolina lawyer's confidentiality duty end when the client dies?

A: No. The opinion concluded the duty of confidentiality continues after the client's death, citing CPR 268 and the Comment to Rule 4.

Q: Can the lawyer give the deceased client's earlier wills to the client's siblings?

A: Not directly. The opinion concluded the lawyer may disclose the information only to the estate's personal representative, or to third parties at the representative's direction, not to the heirs themselves.

Q: Are there limits on disclosing to the personal representative?

A: Yes. The opinion conditioned disclosure on its not being clearly contrary to the goals of the original representation or to express instructions the client gave the lawyer before death.

Background and rules framework

The opinion applied North Carolina's then-current Rule 4(c), the confidentiality exceptions corresponding to Model Rule 1.6, in particular Rule 4(c)(1) on disclosure impliedly authorized to carry out the representation. It treated the personal representative as standing in the deceased client's shoes for purposes of implied authorization, and partially overruled the earlier opinion CPR 268.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• North Carolina Rule 4(c), Rule 4(c)(1)

Other opinions cited:

• CPR 268 (overruled to the extent it implied disclosure to heirs)

See also

• NC Ethics Op. RPC 229: joint representation of husband and wife in estate planning
• NC Ethics Op. RPC 227: release of title notes to a former client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-206/

Original opinion text

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

Inquiry:

Decedent dies with a will that was written four months before his death and which does not provide for his brothers or sisters. The will was filed with the clerk of court in order that it might be probated. Attorney A is still in possession of earlier wills of Decedent. The brothers and sisters have asked Attorney A for copies of these earlier wills. What is Attorney A's ethical obligation in responding to this request?

Opinion:

Attorney A may only disclose confidential information of Decedent to the personal representative of Decedent's estate.

The duty of confidentiality continues after the death of a client. CPR 268 and Comment to Rule 4 of the Rules of Professional Conduct. A lawyer may only reveal confidential information of a deceased client if disclosure is permitted by the exceptions to the duty of confidentiality set forth in Rule 4(c). Specifically, 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). 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. Unless the disclosure of confidential information to the personal representative, or a third party at the personal representative's instruction, would be clearly contrary to the goals of the original representation or would be contrary to express instructions given by the client to his lawyer prior to the client's death, the lawyer may reveal a client's confidential information to the personal representative of the client's estate and he may also reveal the deceased client's confidential information to third parties at the direction of the personal representative. To the extent that CPR 268 implies that a lawyer may reveal confidential information of a deceased client to the heirs of a decedent, in addition to the personal representative, CPR 268 is hereby specifically overruled.