Can a defense lawyer reveal a deceased client's statement that might exonerate a co-defendant who is trying to vacate her plea?
NY State Bar Ethics Opinion 1084: Disclosing a deceased client's statement exonerating a co-defendant
Short answer: A deceased client's statement that may exonerate a co-defendant is confidential information that survives the client's death, but the lawyer may disclose it where the client gave informed consent (including a prior instruction to disclose after conviction), where a person legally entitled to waive the privilege consents, or where disclosure is impliedly authorized as consistent with the client's wishes and reasonable under the circumstances.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
While representing a client charged with fraud, the inquiring attorney learned information that appeared to exonerate a co-defendant. The client was convicted, has since died in prison, and there are no pending proceedings in which the attorney appeared. The co-defendant, who pleaded guilty, is now seeking to vacate her plea and has asked whether the lawyer knows anything that could help; before his death the client said that if convicted, he wanted to exonerate the co-defendant (¶ 1).
The committee organized the analysis around three questions: whether the information is confidential, whether anyone can consent to disclosure, and whether the deceased client impliedly authorized it (¶ 3). On confidentiality, the committee concluded the information is plainly "confidential information" under Rule 1.6(a) and remains protected as to a former client under Rule 1.9(c)(2), because it was gained during the representation and is privileged, and because a statement negating a co-defendant's guilt could be detrimental to a more culpable client (¶¶ 4, 7). It noted that the Rule 1.6(b)(1) exception for preventing death or substantial bodily harm did not apply, since incarceration on a fraud conviction is not that kind of harm (¶ 5).
On disclosure, the committee identified three possible paths. First, the client's stated wish to exonerate the co-defendant could amount to express informed consent under Rule 1.6(a)(1), authorizing disclosure on the happening of a future event such as the conclusion of the client's own case, though whether the client actually gave such instruction is a question of fact outside the committee's jurisdiction (¶ 8). Second, even without the client's personal consent, someone legally entitled to waive the deceased client's privilege (such as a personal representative) might consent, a question of law the committee did not resolve (¶ 9, citing N.Y. State 970 (2013)). Third, under the implied-authorization concept of Rule 1.6(a)(2) and Comment [5], where there is reason to believe the client would have wanted the co-defendant exonerated, the lawyer may make disclosures necessary to accomplish that end (¶¶ 10-11).
In practice
Under the New York rules as they stood at the time of the opinion, the committee treated the duty of confidentiality as continuing past the client's death and as covering information that helps a co-defendant because it can harm the client's relative position. The opinion does not give the lawyer a free hand: it routes disclosure through consent (express, by a legally authorized representative, or implied), and it expressly leaves the factual question of what the client instructed, and the legal question of who may waive a deceased client's privilege, to be resolved outside the committee's jurisdiction. Implied authorization under Rule 1.6(a)(2) is available where the disclosure advances the client's best interests and is reasonable or customary.
Common questions
Q: Does a lawyer's duty of confidentiality end when the client dies?
A: No. The opinion concludes that under Rule 1.9(c)(2) the lawyer must continue to protect a former client's confidential information, and the deceased client's exonerating statement remains confidential (¶¶ 6-7).
Q: Can the lawyer disclose because the co-defendant faces imprisonment?
A: Not on that basis. The opinion concludes the Rule 1.6(b)(1) exception for preventing death or substantial bodily harm does not cover incarceration on a fraud conviction (¶ 5).
Q: How could the lawyer permissibly reveal the statement?
A: Through consent. The opinion concludes disclosure is permitted if the client gave informed consent (including a standing instruction to disclose after conviction), if a person legally authorized to waive the privilege consents, or if disclosure is impliedly authorized as consistent with the client's wishes and reasonable (¶¶ 8-11).
Background and rules framework
The opinion interprets New York Rules of Professional Conduct 1.6(a) and (b) (confidentiality, including the informed-consent and implied-authorization paths and the death-or-bodily-harm exception) and Rule 1.9(c) (confidentiality owed to former clients), corresponding to ABA Model Rules 1.6 and 1.9. Comment [6B] frames the death-or-bodily-harm exception, and Comment [5] frames implied authorization. The questions of what the client instructed and who may waive a deceased client's privilege are treated as fact and law outside the committee's jurisdiction.
Citations and references
Rules of Professional Conduct:
- MR 1.6 / NY RPC 1.6(a), (b)(1) (confidentiality; informed consent; implied authorization; death-or-harm exception)
- MR 1.9 / NY RPC 1.9(c)(2) (confidentiality owed to former clients)
Other opinions cited:
- N.Y. State 1057 (2015): scope of confidential information
- N.Y. State 970 (2013): a personal representative's access to a deceased client's files
See also
- NY State Bar Op. 1094: Releasing a client's file to former counsel
- NY State Bar Op. 1088: Disclosing client identities to a prospective client
Source
- Landing page: https://nysba.org/ethics-opinion-1084/