Ezel / Ethics Opinions / SBAND

May a lawyer voluntarily give a deceased will client’s notes to relatives considering a will contest?

Short answer The committee said Rule 1.6 barred voluntary disclosure on the stated facts absent client consent or another rule basis. A court order requiring production would change the result.
Bar
SBAND
Issued
October 9, 1995
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1995. 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

The requesting lawyer prepared a will leaving most assets to a friend. After the client died, relatives who received little or nothing requested the lawyer’s preparation and execution notes for a possible challenge.

The committee separated the ethics duty of confidentiality from the evidentiary attorney-client privilege. It said the lawyer could not voluntarily hand over the notes on the stated facts, although a court might order production after deciding the privilege question.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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: Does death alone permit the lawyer to give the notes to relatives?

A: No. The opinion applies Rule 1.6 to the deceased client’s information and rejects voluntary disclosure without a stated exception.

Q: What if a court orders production?

A: The committee said the lawyer must produce the information if a court finds it unprivileged and orders disclosure.

Background and rules framework

The opinion discusses North Dakota Rules 1.6 in addressing the stated request.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.6.

See also

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 1995. Ezel checks the current North Dakota Rules of Professional Conduct against your situation and cites the rules it relies on.

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