After a client dies, can the lawyer give a copy of the client's will to another lawyer checking title, and can the client's son waive confidentiality?

Plain-English summary

Attorney A had drafted a will for a client, naming the client's wife as personal representative and the client's son as successor. The client died years ago; the will was never probated. The client owned an interest in real property that had since been transferred at least once. Attorney B, checking title, asked Attorney A for a copy of the will. The questions were whether Attorney A could provide a copy without anyone's permission, and whether the son could waive confidentiality on the client's behalf.

The committee first distinguished confidentiality (the ethics rule) from privilege (a matter of law outside the committee's purview), noting privilege was not implicated because there was no proceeding. Under Rule 1.6, a lawyer may not disclose information relating to the representation unless the client consents, the disclosure is impliedly authorized to carry out the representation, or a paragraph (b) exception applies. The duty continues after the representation ends and, as most jurisdictions hold, after the client's death.

The committee laid out the options. The lawyer may exercise discretion not to disclose, and that decision should not be reexamined. Alternatively, the lawyer may reasonably conclude the client impliedly authorized disclosure to carry out his testamentary intent: a will's purpose is to be published and control the disposition of assets, so disclosing it to pass clear title would serve the deceased client's intent absent any indication the client wanted it kept secret. On those facts, the lawyer may deliver a copy. If the lawyer holds the original will or codicil, the committee pointed to S.C. Code § 62-2-901, which requires a custodian to deliver a decedent's will to the probate judge (a legal point, not an ethics ruling), and noted the tension that can arise between that statute and Rule 1.6 if the implied-authorization conditions are not met. Finally, the committee concluded that neither the son nor anyone else may waive confidentiality for the deceased client; confidentiality survives death and there is no authority for third-party waiver.

In practice

Under this opinion, on the facts presented, a lawyer holding a deceased client's will has discretion either to withhold it (not subject to reexamination) or to provide a copy where disclosure furthers the client's testamentary intent and the client did not forbid it, as implied authorization under Rule 1.6(a). The committee treated the will's purpose (to be published and pass clear title) as supporting implied authorization, flagged the separate statutory duty under S.C. Code § 62-2-901 for an original, and held confidentiality survives death with no third-party waiver.

Common questions

Q: My deceased client's will is being requested by another lawyer checking title. Can I hand over a copy?

A: The committee says you may, if you reasonably believe disclosure furthers the client's testamentary intent and the client did not forbid it; that is implied authorization under Rule 1.6(a). You may also decline, and that decision is not subject to reexamination.

Q: Can the client's son, named as successor personal representative, waive confidentiality?

A: No. The committee concludes confidentiality survives the client's death and neither the son nor any other third party has authority to waive it.

Q: What if I have the original will, not just a copy?

A: The committee points to S.C. Code § 62-2-901, which requires a will's custodian to deliver it to the probate judge. It notes this is a legal matter and that, if the implied-authorization conditions are not met, the statute and Rule 1.6 can be in tension; a written client agreement on disposition of held wills could resolve it.

Background and rules framework

The opinion applies South Carolina's version of Model Rule 1.6 (confidentiality of information), including implied authorization and the duty's survival after the client's death, at SCACR 407. It references S.C. Code § 62-2-901 (delivery of a decedent's will to probate) as a related legal matter, and cites out-of-state authority on post-death confidentiality and the absence of third-party waiver.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / SC Rule 1.6(a) (confidentiality; consent and implied authorization; survival after the client's death)

Statutes:

• S.C. Code § 62-2-901 (1976) (custodian's duty to deliver a decedent's will or codicil to the probate judge)

Other opinions cited:

• ABA Informal Opinion 89-1530 (disclosure of a client's impairment under Rules 1.6 and 1.14)
• SC Ethics Advisory Opinions 98-30, 90-30 (confidentiality continues after the representation ends)
• Connecticut Ethics Opinion 90-26; Hawaii Formal Opinion 38 (1999) (no third-party waiver of a deceased client's confidentiality)

See also

• SC Bar Ethics Op. 03-12: Confidences from a consultation that never became representation
• SC Bar Ethics Op. 04-02: Reporting a lender's illegal "witness only" closings

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-09/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 05-09

RULE 1.6

Facts
Attorney A drafted a Will for Client which named Client’s Wife as personal representative (“APR”) and Client’s Son as successor PR. The will has never been probated, nor recorded in the probate court of the county where Client was domiciled, although Client has been dead for several years. Client at his death owned an interest in certain real property located in the county of his domicile (“Property”). Attorney A believes Client’s Wife is either deceased or incompetent. Neither her will nor her estate has been filed in the probate court in the county where the Property is located.

Attorney B has requested a copy of the Will in order to check title on the Property, which has been transferred at least once after Client’s death. Attorney B has stated that a copy of the Will with an affidavit was given to the title company in connection with the prior transfer, but Attorney B has only seen the affidavit and the first and last page of the Will, and therefore has no basis upon which to judge the validity of the affidavit. Attorney B has also stated that the will had been publicly circulated in connection with establishing a chain of title for the Property.

Questions
Can Attorney A ethically provide a photocopy of the Will to Attorney B without receiving permission from anyone?
Can Son waive confidentiality on behalf of Client either by virtue of being named as successor PR in Client’s will or otherwise?

Summary
Assuming Attorney A does not have the original of Client’s will, he will not violate any ethical rules if he refuses to furnish Attorney B with a copy of the will, and this decision should not be reexamined. If, however, Attorney A believes that disclosure of the contents of the will would be in furtherance of Client’s intent, and Client did not forbid him to disclose, he may furnish Attorney B with a copy of the will, as being impliedly authorized in order to carry out the representation of Client as permitted by Rule 1.6(a).

If Attorney A has Client’s original will or codicil in his possession, he should review ' 62-62-901, South Carolina Code of Laws (1976), which requires anyone in possession of a will of codicil of a decedent to deliver it to the judge of probate having jurisdiction, on pain of being punished for a misdemeanor. This course of action would render moot the question of providing a copy to Attorney B and could also comply with Rule 1.6(a), assuming that Attorney A believes that disclosure of the contents of the will would be in furtherance of Client’s intent and Client did not forbid him to disclose. If either of these conditions is not met, it is unclear how Attorney A, in possession of an original will or codicil of Client could comply with both the statute and rule 1.6. It has been suggested in another jurisdiction that lawyers have a written agreement with clients as to the disposition of wills held by them; such an agreement would resolve this conflict.

It would appear that neither son nor anyone else would be authorized to waive confidentiality on behalf of Client. Attorney-client confidentiality survives the death of the client, and there is no authority for its waiver by third parties.

Opinion
There is a distinction between “confidentiality” and “privilege”:

“The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.” Comment, Rule 1.6, Rule 407, South Carolina Rules of Professional Conduct, South Carolina Appellate Court Rules. (“RPC”)

Since this committee does not opine as to matters of law, the subject of privilege is outside its purview. As the quoted paragraph makes clear, privilege is not an issue anyway, since the factual scenario does not involve a judicial or other proceeding.

Rule 1.6 prohibits in relevant part disclosure of all “. . . information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation and except as stated in paragraph (b) . . .”, which does not appear to be relevant here. The comments enlarge upon this a bit, by implying an authorization “. . . to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority.” The effect of this rule continues after the representation has ended. (See Opinions 98-30 and 90-30), and many, if not most, jurisdictions that have issued ethics opinions believe the rule extends after the death of the client. (See Disciplinary Board of the Hawaii Supreme Court, Formal Opinion No. 38, 1999; District of Columbia Bar, Opinion 324, 2004; Los Angeles County Bar Association Professional Responsibility and Ethics Committee, Opinion No. 491, 1997.)

No Disclosure
The lawyer's exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure. (CPR, Scope) Based on the lack of explicit direction in Rule 1.6, and the presumption of confidentiality, Attorney A may exercise his discretion not to disclose Client’s will, and it would appear that this would be within the ethical rules and not subject to reexamination.

Permitted Disclosure
Attorney A may reasonably believe that Client implicitly authorized him to disclose the contents of the will in order to carry out Client’s testamentary intent and make his will known to his beneficiaries. ABA Informal Opinion 89-1530 considered the case of a client who was mentally impaired and concluded that Rule 1.6, in conjunction with Rule 1.14, authorized the lawyer to disclose the client’s impairment to a physician in order to serve the best interests of the client. It would seem to be axiomatic that, although Client might want to keep secret the contents of his will prior to his death, the purpose of a will is to be published and to control the disposition of the decedent’s assets. It would be in Client’s best interests and in accordance with his intent in executing the will to pass clear title to the Property to his beneficiaries. There is no indication that Client intended for Attorney A to keep the will secret after Client’s death.

Without specific information concerning any subsequent will, Attorney A could reasonably conclude that Client intended for his will to be carried out and that the possibility of liability to Client’s beneficiaries arising out of a potential defect in the title of the Property passing from Client to the beneficiaries outweighed any doubt as to whether Client might have wanted the contents of the will kept secret after his death. Under these circumstances, Attorney A may deliver a copy of Client’s will to Attorney B, in compliance with Rule 1.6.

If Attorney A Has the Original of Client’s Will
This committee does not give advice as to matters of law. However, where statutory or case law is relevant to ethical matters, we may point out such items to inquirers. If Attorney A has Client’s original will or codicil in his possession, he should review ' 62-62-901, South Carolina Code of Laws (1976), which requires anyone in possession of a will of codicil of a decedent to deliver it to the judge of probate having jurisdiction, on pain of being punished for a misdemeanor. This course of action would render moot the question of providing a copy to Attorney B and could also comply with Rule 1.6(a), assuming that Attorney A believes that disclosure of the contents of the will would be in furtherance of Client’s intent, and Client did not forbid him to disclose.

If either of the preceding conditions is not met, it is unclear how Attorney A, in possession of an original will or codicil of Client, could comply with both the statute and Rule 1.6. There is no other provision in Rule 1.6 that would allow Attorney A to disclose the contents of the Will. The former Code of Professional Responsibility (“CPR”) had an exception to the rule of confidentiality that permitted disclosure when required by law. Rule 1.6 makes no such exception, but a comment appears to restate the old rule: “A lawyer may not disclose . . . information except as authorized or required by the Rules of Professional Conduct or other law.” (Emphasis added.)

It has been suggested in another jurisdiction (New York State Bar Association Committee on Professional Ethics, Opinion 724 - 11/30/99) that lawyers have a written agreement with clients as to the disposition of wills held by them; such an agreement would resolve this conflict.

Waiver by Son
Attorney-client privilege, or work product privilege, according to the comments to Rule 1.6 may be waived, and there are many legal rules regarding such waiver, all of which are beyond the scope of this committee’s activity. There is no indication in the RPC that confidentiality can be waived by anyone but Client, who in the present fact situation is dead and unable to do so. Two state ethics opinions that deal with this issue both conclude that no third party has authority to waive confidentiality on behalf of a deceased client. (Connecticut Ethics Opinion 90-26, Disciplinary Board of the Hawaii Supreme Court, Formal Opinion No. 38, 1999.)

It would appear that neither son nor anyone else would be authorized to waive confidentiality on behalf of Client.