If a client dies before signing a will I drafted, can I testify at a deposition about who the client intended to name as beneficiaries?

Currency note

This opinion was issued in 2000, before Rhode Island's later renumbering of 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 Treat this page as historical context, not current guidance.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 mentioned here.

Plain-English summary

A lawyer, serving as co-administrator of a probate estate, had been retained by the decedent about three months before death to draft a will. The decedent died before executing it and died intestate. A claimant against the estate alleged the decedent had promised to name the claimant and siblings as will beneficiaries in exchange for services rendered, and claimant's counsel noticed the lawyer's deposition, expecting to ask who the proposed will's intended beneficiaries were.

The panel held that Rule 1.6's duty of confidentiality continues after a client's death, citing the comment to Rule 1.6 and Hazard and Hodes' treatise for the principle that the duties of loyalty and confidentiality survive termination of the representation by the client's death. It also cited Curato v. Brain, 715 A.2d 631 (R.I. 1998), for the proposition that the attorney-client privilege generally survives the client's death. Because the identity of the decedent's intended beneficiaries was information relating to the representation, the panel concluded the lawyer could not disclose it.

The panel directed the lawyer to invoke the attorney-client privilege, the ethical duty of confidentiality, and the work product doctrine where applicable, and to object to disclosure at the deposition on those grounds, citing its own prior opinion, R.I. Sup. Ct. Ethics Advisory Panel Op. 96-34 (1994). It qualified this with the standard exception that the lawyer must nonetheless comply with a court's final order compelling disclosure of information related to the representation.

Common questions

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

A: No. The panel held the confidentiality obligation and the attorney-client privilege generally continue after the client's death.

Q: Do I have to assert privilege myself at a deposition, or can I just answer and let opposing counsel object?

A: The panel held the lawyer has a duty to invoke the privilege and confidentiality obligation and to object to disclosure, rather than volunteer the protected information.

Q: What if a court orders me to disclose the information anyway?

A: The panel's opinion states the lawyer must comply with a court's final order requiring disclosure of information related to the representation.

Background and rules framework

The opinion applies Rule 1.6(a) (Confidentiality of Information, Model Rule 1.6), which the panel quoted as providing that a lawyer "shall not reveal information relating to the representation of a client." The panel read the comment to Rule 1.6 as extending that duty beyond termination of the representation, including termination by the client's death, and treated the attorney-client privilege as generally surviving death as well under Rhode Island case law.

Citations and references

Rules of Professional Conduct:

• MR 1.6(a) (Confidentiality of Information) / RI Rule 1.6(a)

Cases:

• Curato v. Brain, 715 A.2d 631 (R.I. 1998): attorney-client privilege generally survives the client's death

Other opinions cited:

• R.I. Sup. Ct. Ethics Advisory Panel Op. 96-34 (1994): duty to object to disclosure of privileged and confidential information at a deposition
• N.D. State Bar Ass'n Ethics Comm. Op. 95-11 (1995): lawyer may not give notes about a deceased client's will to relatives challenging the will absent client consent, but must comply if a court orders production
• Pa. Bar Ass'n Comm. on Legal Ethics and Professional Responsibility Op. 94-385 (1994): lawyer whose client died by suicide is barred from testifying about client communications absent a court order compelling it

See also

• Colorado Bar Op. 132: Confidentiality After Client Death
• DC Bar Op. 324: Disclosure of a Deceased Client's Files
• NYSBA Op. 970: Disclosing a Deceased Client's File to the Executor

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2000-08.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

Rhode Island Supreme Court
Ethics Advisory Panel Opinion No. 2000-8, Request No. 811
Issued October 18, 2000

Facts

The inquiring attorney is co-administrator of a probate estate. About three months before
the decedent died, the inquiring attorney was retained by the decedent for the purpose of drafting
a will. However, the decedent died before executing the will and died intestate. A claim has
been filed against the estate in which the claimant alleges that the decedent promised, in return
for the rendition of various services, to make a will naming the claimant and his/her siblings as
the beneficiaries. The inquiring attorney has received notice that counsel for the claimant will
take the inquiring attorney's deposition. The inquirer anticipates that claimant's counsel will ask
who were the intended beneficiaries in the proposed will.

Issue Presented:

Does Rule 1.6 of the Rules of Professional Conduct prohibit the inquiring attorney from
disclosing at the deposition the intended beneficiary of the proposed will or other information
relating to the representation?

Opinion:

Yes. Under Rule 1.6, the inquiring attorney has an obligation of confidentiality which
continues after the client's death. Pursuant to Rule 1.6, the inquiring attorney has a duty to
invoke the attorney-client privilege, the ethical obligation of confidentiality, and if applicable,
the work product doctrine. The inquiring attorney must comply, however, with the final orders
of a court requiring him/her to disclose information related to the representation of the client.

Reasoning:

Rule 1.6(a) states that a lawyer "shall not reveal information relating to the representation
of a client...." The duty of confidentiality continues after the attorney-client relationship has
terminated. Comment to Rule 1.6. The ethical duties of loyalty and confidentiality continue
even after the relationship is terminated by the client's death. Geoffrey C. Hazard, Jr. and W.
William Hodes, The Law of Lawyering, §1:6:101, at 130 (2nd ed. Supp. 1993); see Curato v.
Brain, 715 A.2d 631 (R.I. 1998) (attorney-client privilege generally will survive client's death.)
The identity of decedent's intended beneficiaries is information related to the representation and
pursuant to his/her obligation of confidentiality, the inquiring attorney may not disclose it.

The official comments to Rule 1.6 further provide:

....If a lawyer is called as a witness to give testimony concerning

Final 2000-8
Page 2

a client, absent waiver by the client, paragraph (a) requires a lawyer

to invoke the privilege when it is applicable. The lawyer must comply
with the final orders of a court or other tribunal of competent jurisdiction
requiring the lawyer to give information about the client.

The Panel therefore advises the inquiring attorney that he/she has an obligation not to
disclose information relating to the decedent's representation, and to object to its disclosure in
the appropriate motions and/or at the deposition on the grounds of attorney-client privilege, the
work product doctrine, and his/her ethical obligation of confidentiality with respect to documents
and information which in his/her professional judgment are protected by Rule 1.6(a). See R.I.
Sup. Court Ethics Advisory Panel, Op. 96-34 (1994). The inquiring attorney must comply,
however, with the final orders of a court requiring him/her to produce documents or to disclose
information related to the representation. See N.D. State Bar Ass'n. Ethics Comm., Op. 95-11
(1995) (lawyer may not give notes about deceased client's will to relatives challenging will
unless client consented, but if court orders production, lawyer must comply); Pa. Bar Ass'n
Comm. On Legal Ethics and Professional Responsibility, Op. 94-385 (1994) (lawyer whose
client committed suicide is prohibited from testifying about communications with client, but if
ordered to testify, lawyer must comply).