After a client dies, can the lawyer disclose the client's confidential statements to police investigating the death, or must the lawyer keep asserting the privilege?

Plain-English summary

A man told police he was innocent of a suspected sexual crime against a child, then retained an attorney and had several confidential discussions with her before police said they would prosecute. On the evening of his last meeting with the attorney he was found dead under suspicious circumstances. Police asked the attorney for his statements, saying they needed them to determine the cause of death, and said they would obtain waivers from his surviving mother and sister and seek a court order if she did not cooperate. The attorney asserted the deceased client's attorney-client privilege and asked the committee for guidance, acknowledging some information might be relevant to the investigation.

The committee reviewed the listed exceptions to Rule 16-106 (client consent; preventing a client's criminal act likely to cause imminent death, great bodily harm, or substantial injury; establishing a claim or defense in a dispute with the client; defending against a claim based on the client's conduct; and responding to misconduct allegations) and observed the rule is silent on the effect of a client's death, with no New Mexico authority on point. It surveyed other states, which it grouped as recognizing that the privilege survives death, that a personal representative may inherit it, that a lawyer may use judgment to reveal confidences in the decedent's interest, that confidences may be revealed to a widow or heirs, or that confidences may not be revealed absent a specific exception or court order. It noted the ABA comment that confidentiality survives the relationship and that a lawyer must invoke the privilege when applicable but comply with a court order requiring disclosure.

Turning to New Mexico law, the committee noted that a "personal representative" requires appointment by a court of competent jurisdiction and, unless restricted, has the powers of an absolute owner over the decedent's property, and that under Hunter v. Kenney attorneys have no option to waive the privilege for a client and are obligated to assert it. The committee concluded the attorney must continue to assert the deceased client's privilege until either a personal representative is appointed and makes an informed waiver after consultation, or, after assertion of the privilege before a court convened to consider the matter, the attorney is ordered by the court to reveal the information. It declined to read Rule 16-106 to create any exception of convenience or any obligation to do anything other than assert the privilege, while agreeing the attorney should comply with a court order and with the Probate Code's scheme.

Currency note

This opinion was issued in 1992, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rule 16-106). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes), which revised the confidentiality rule and its exceptions. 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 client's privilege end when the client dies?

A: The committee concluded it does not automatically end; the attorney must continue to assert the deceased client's privilege, consistent with New Mexico authority that a lawyer has no option to waive it and is obligated to assert it.

Q: Can police get the confidences with waivers from the client's family?

A: Not on their own. The committee concluded only a court-appointed personal representative who makes an informed waiver after consultation, or a court order, can override the lawyer's duty to assert the privilege.

Q: What should the lawyer do if served with a subpoena or court demand?

A: The committee concluded the attorney should assert the privilege before a court convened to consider the matter and may reveal information only if the court then orders disclosure.

Q: Did the rule's listed exceptions cover this situation?

A: No. The committee found Rule 16-106 silent on the effect of death and declined to create an exception of convenience beyond the rule's listed exceptions, a court order, and the Probate Code's scheme.

Citations and references

Rules of Professional Conduct:

• Rule 16-106 (confidentiality of information) and its listed exceptions

Statutes:

• NMSA 1978, Sections 45-1-201(29), 45-3-103, 45-3-504, 45-3-711 (Probate Code; personal representative appointment and powers)

Cases:

• Hunter v. Kenney, 77 N.M. 336, 422 P.2d 623 (1967): attorneys have no option to waive the privilege for a client and are obligated to assert it
• In re John Doe Grand Jury Investigation, 562 N.E.2d 69 (Mass. 1990): privilege survives death

Other opinions cited:

• Numerous state and local bar opinions surveyed on whether privilege survives a client's death (Connecticut, Mississippi, Nassau County NY, Vermont, Wisconsin, Washington, Los Angeles County, Maryland, Virginia, Alabama, North Carolina)

See also

• NM Ethics Op. 1989-1: Whether a Lawyer Must Report a Non-Client's Criminal Activity Discovered During a Civil Case

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1990-92/1992-2.pdf

Original opinion text

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

Advisory Opinion 1992-2
CLIENT CONFIDENCE AFTER DEATH OF CLIENT
Police advised John Doe he was a target of an investigation regarding allegations of a sexual crime against a child. Doe
proclaimed his innocence to the police, and then retained an attorney for advice and representation. Thereupon, attorney
and Doe had several confidential discussions. Police informed attorney they were proceeding with prosecution of Doe. On
the evening of Doe's last meeting with attorney, he was found dead under suspicious circumstances. Police contacted the
attorney and wanted information about Doe's statements to her, telling her that they needed the information to help
determine the cause of Doe's death. Attorney has learned that there are claims Doe was killed by the father of the alleged
victim, or alternatively, that he committed suicide. Doe was unmarried, and is survived by his mother and a sister. Police
say they will get the mother and sister to sign waivers, and if the attorney does not cooperate, they will seek an order of a
court. The attorney has raised attorney/client privilege on behalf of the deceased client, and requests our assistance. She
has no doubt the discussions were confidential, but agrees that some of the information might be considered relevant to
the investigation at hand.
There are delineated exceptions in SCRA 1986, 16-106 (Repl. Pamp. 1991) to the rule that "[a] lawyer shall not reveal
information," as follows:
1. When the client consents.
2. When the client must be prevented from a criminal act likely to cause imminent death or great bodily
harm, or substantial injury to property or finances of another.
3. To establish a claim or defense for the lawyer in a contest with the client.
4. To establish a defense for the lawyer in a claim against the lawyer based on the client's conduct.
5. To respond to allegations concerning the misconduct by the lawyer in representation of the client.

Our rule is silent as to the effect of a client's death, and there is no New Mexico authority applicable to this question or the
facts of the inquiry. The ABA comment following Rule 16-106 notes that confidentiality survives termination of the
relationship, and also that the lawyer must invoke the privilege when applicable, but must comply with an order of a court
requiring disclosure.
Many other states have addressed the ethical issue presented here. Their analysis may be categorized and summarized
as follows:
1. Survival: Many jurisdictions which have considered the issue have believed that the privilege survives
death. In re: John Doe Grand Jury Investigation, 562 N.E.2d 69 (Mass. 1990); Connecticut Bar Ass'n
Comm. Informal Op. 90-26 (10/5/90); Mississippi State Bar Comm. Op. 119 (6/5/86); Bar Ass'n of Nassau
County, N.Y. Comm. Ops. 88-36 (9/29/88) and 89-26 (6/6/89); Vermont Bar Ass'n Comm. Ops. 88-1
(undated) and 88-6 (undated); State Bar of Wis. Comm. Op. E-89-11 (5/24/89); Washington State Bar
Ass'n Comm. Op. 175 (7/82); Los Angeles County, Cal. Bar Ass'n Comm. Formal Op. 414 (4/29/83);
Maryland State Bar Ass'n Comm. Op. 80-31 (undated), 83-3 (9/27/82), 84-107 (9/19/84), and 85-93
(6/20/85).
2. Personal Representative: Some authorities have believed that a personal representative inherits the
privilege. CJS, Attorneys at Law § 171; Mississippi State Bar Comm. Op. 119 (6/5/86); North Carolina
State Bar Ass'n Comm. Op. 268 (7/9/80).
3. Lawyer's Judgment: Some authorities have believed that a lawyer may reveal confidences after death
of a client when the lawyer reasonably believes it is in the decedent's interest, and the decedent would
have waived if alive. Virginia State Bar Comm. Op. 812 (undated) and 1207 (5/2/89); Alabama State Bar
Comm. Op. 85-70 (6/19/85).
4. Widow and Heirs: One authority said that the confidence of the client can be revealed to the widow or

heirs. North Carolina State Bar Ass'n Comm. Op. 268 (7/9/80).
5. Strict Construction: Some authorities appear to believe that the confidences may not be revealed
absent a specific exception in the rule or order of a court. In re: John Doe Grand Jury Investigation;
Connecticut Bar Ass'n Comm. Informal Op. 90-26 (10/5/90); Washington State Bar Ass'n Comm. Op. 175
(7/82); Maryland State Bar Ass'n Comm. Op. 80-31 (undated).

In New Mexico the term "Personal Representative" has a broad application, NMSA 1978, § 45-1-201(29) (Repl. Pamp.
1989), but requires appointment of a court of competent jurisdiction, § 45-3-103. Unless restricted by the district court, §
45-3-504, a personal representative has the same power over a decedent's property as an absolute owner, § 45-3-711.
New Mexico law holds that attorneys have no option to waive privilege for a client, and are obligated to assert it. Hunter v.
Kenney, 77 N.M. 336, 422 P.2d 623 (1967).
In our opinion, the attorney must continue to assert the deceased client's privilege in this matter until the happening of
either of the following:
1. A personal representative is appointed and, after consultation, makes an informed waiver; or
2. After assertion of the privilege before a court convened for purposes of considering the matter, the
attorney is ordered by the court to reveal information.

One of the foundations of our profession is the client's right to confidence. We do not believe that Rule 16-106 should be
construed to create any exception of convenience, or to put upon an attorney any right or obligation to do anything other
than assert the privilege. Along with the exceptions clearly noted in the rule, we do agree that an attorney should comply
with the order of a court and scheme of the New Mexico Probate Code which regulates the affairs of a decedent.