Ezel / Ethics Opinions / SBAND

Could a lawyer release privileged material from a deceased client’s divorce file in response to a subpoena?

Short answer The committee said privileged information from the deceased client’s file could not be released without consent from the estate’s personal representative or a court order. It cited North Dakota Rule of Evidence 502(c).
Bar
SBAND
Issued
September 25, 1990
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1990. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer who had taken over another practice received a subpoena to produce a deceased client’s old divorce file in litigation involving the estate. The lawyer asked whether the file could be disclosed.

The committee cited North Dakota Rule of Evidence 502(c), under which the deceased client’s personal representative could claim the privilege. It said privileged material from the file could not be released without the personal representative’s consent or an order of the court.

Currency note

This opinion was issued in 1990, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could the lawyer comply with the subpoena by releasing privileged file content alone?

A: No. The committee said consent from the estate’s personal representative or a court order was required for the privileged information.

Q: What source did the committee cite?

A: It cited North Dakota Rule of Evidence 502(c), concerning who may claim a deceased client’s privilege.

Background and rules framework

The response addressed privileged material in the old client file and relied on North Dakota Rule of Evidence 502(c). It did not identify a separate numbered professional-conduct rule.

Citations and references

Rules of Evidence:

  • North Dakota Rule of Evidence 502(c), cited for the deceased client’s personal representative’s ability to claim privilege.

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

What do the rules say today, for your facts?

This opinion is from 1990. Ezel checks the current North Dakota Rules of Professional Conduct against your situation and cites the rules it relies on.

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