When a deceased client's file is demanded by the estate's personal representative, who was the client's adversary in life, must the lawyer turn it over?

Plain-English summary

A lawyer represented a client in family court actions for separate support and maintenance and equitable division against her separated spouse. The client developed dementia and died before the litigation resolved, and the spouse dismissed the action. After the client's death, her brother was first appointed administrator of her estate, but the spouse then filed a will naming himself sole heir and personal representative, and the probate court replaced the brother with the spouse as executor. The spouse, as executor, demanded the client's file as estate property. The file contained both noncontroversial items (car titles, financial documents) and more sensitive items (letters, notes) tied to the former family court action. The inquiry asked whether, given the prior adversarial posture, the lawyer may return the file to the spouse as personal representative.

The committee concluded the lawyer should produce items only to the extent he can determine that either the deceased client or the probate court specifically authorized their release to the spouse, and that any other information should not be released absent a court order. The committee rejected drawing a distinction between asset-oriented items and sensitive ones: Rule 1.6 covers "information relating to the representation of the client," and all of the information was in some way related to the representation, so separating the controversial from the straightforward is not contemplated by the rules. Relying on its Opinion 05-09, the committee reiterated that attorney-client confidentiality survives the client's death and there is no authority for its waiver by third parties.

Because the client is deceased, no informed consent can be obtained, and because the lawyer was retained for the now-dismissed support action, disclosure to the estate's personal representative cannot be said to further the representation. The committee found the only applicable exception is Rule 1.6(b)(7), which allows disclosure to comply with a law or court order. The lawyer may either proactively file an action in the probate court asking it to determine his obligation to disclose, or assert the confidentiality privilege to the personal representative, who can then seek a production order; the lawyer may consider producing to the court an inventory of the arguably privileged items so the court can determine their proper distribution.

In practice

The opinion holds that, under South Carolina Rule 1.6, a lawyer holding a deceased client's file may release it to the estate's personal representative only to the extent the deceased client or the probate court specifically authorized release, because confidentiality survives death and cannot be waived by third parties (Opinion 05-09). The opinion treats the whole file as "information relating to the representation," declining to separate sensitive from routine items, and finds the only applicable disclosure path is Rule 1.6(b)(7) compliance with a court order. The opinion describes two routes: the lawyer may file in probate court to determine his obligation, or assert the privilege and let the personal representative seek an order, optionally giving the court an inventory of the arguably privileged items.

Common questions

Q: Does attorney-client confidentiality end when the client dies?

A: No. The committee said, relying on Opinion 05-09, that confidentiality survives the client's death and there is no authority for its waiver by third parties.

Q: Can the lawyer just hand the file to the estate's personal representative?

A: No, not on these facts. The committee said the lawyer may release items only to the extent the deceased client or the probate court specifically authorized, and otherwise should not release the file absent a court order.

Q: Can the lawyer separate the harmless documents (like car titles) from the sensitive ones?

A: No. The committee said Rule 1.6 covers all information relating to the representation, so separating controversial items from straightforward ones is not contemplated by the rules.

Q: How does the lawyer resolve the demand?

A: Through the court. The committee said the lawyer may file an action in probate court to determine his obligation, or assert the privilege so the personal representative can seek a production order, and may give the court an inventory of the arguably privileged items.

Background and rules framework

The opinion interprets South Carolina Rule 1.6 (confidentiality of information), which corresponds to Model Rule 1.6. Rule 1.6(a) bars revealing information relating to the representation absent client consent, implied authorization, or a 1.6(b) exception; the committee found Rule 1.6(b)(7) (compliance with law or court order) the only applicable exception here. The analysis turns on the survival of confidentiality past death and the absence of consent or a representation-furthering purpose.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / SC Rule 1.6(a) (no disclosure absent consent, implied authorization, or exception), 1.6(b)(7) (disclosure to comply with law or court order)

Other opinions cited:

• SC Ethics Advisory Opinion 05-09 (attorney-client confidentiality survives the client's death; no third-party waiver)

See also

• SC Bar Ethics Op. 05-09: Confidentiality After a Client's Death
• SC Bar Ethics Op. 12-08: Off-Site Trust Account Audit
• ABA Formal Op. 473: Responding to Subpoenas and Compulsory Process for Client Information

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-12-10/
• Original PDF: https://www.scbar.org/media/nj0nwg2y/12-10.pdf

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 12-10

SC Rule of Professional Conduct: 1.6

Facts

Client was a widow with two adult children. Client remarried and then resided in South Carolina with new spouse. Client and new spouse separated in 2010. After the separation, Client moved out of state to live with family for about two years.

Spouse filed actions for separate support and maintenance in South Carolina and equitable division of the marital estate. Lawyer is retained to represent Client in these actions. Client, after suffering from dementia and other health problems, died before the litigation was resolved. The litigation was subsequently dismissed by Spouse.

After Client’s death, client’s brother applied to be and was appointed as Administrator of the Client’s estate in the state where client most recently resided. Subsequently, Spouse filed a last will and testament with the probate court in the other state. The will named Spouse as sole heir and Personal Representative of Client’s estate. Based upon the will, the probate court relieved Brother and appointed Spouse as Executor of the estate.

Spouse, as executor of the estate, now demands return of client’s file as property of the estate. The file appears to contain non controversial items such as car titles, and financial documents, as well as more sensitive items (letters, notes, etc.) that were directly related to the prior family court action.

Question

Given the previous adversarial posture between Client and Spouse, may Lawyer return Client’s file to Spouse in his capacity as Personal Representative of the estate?

Summary of Opinion

Lawyer should produce items only to the extent that he can determine that either the deceased client or the Probate Court specifically authorized its release to the spouse. Any other information should not be released absent a Court order.

Opinion

The Inquirer seems to draw a distinction between items in the file that are more asset oriented, such as car titles and deeds, and those that may be more sensitive, such as letters or other communications. For the purposes of this answer, however, those distinctions are irrelevant. Rule 1.6 covers “information relating to the representation of the client,” and to try to separate the controversial items from those that seem to be more straightforward is an exercise not contemplated by the Rules. All of the information Lawyer received was, in some way “related” to the representation of Client.

The first primary consideration in this case is whether the attorney client confidentiality extends beyond the death of the client. The EAC has previously concluded, in opinion 05-09, that attorney client confidentiality survives the death of the client, and there is no authority for its waiver by third parties.

In this particular scenario, the Rules of Professional Conduct require that the attorney only turn over the contents of the file if compelled to do so by court order. Rule 1.6 (a) prohibits a lawyer from revealing information relating to the representation of a client unless the client consents, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by 1.6(b). The client is deceased, so no informed consent can be obtained from Client. As Lawyer was retained specifically for the separate support and maintenance action ( now dismissed), the disclosure of these items to the Personal Representative of the estate cannot be said to be in furtherance of Lawyer’s representation of Client.

Rule 1.6(b) has 7 subparts, but the only applicable provision in Rule 1.6(b) is sub-section (7), which allows the attorney to reveal confidential information in order to comply with a law or court order. The Lawyer may either proactively file an action in the Probate Court, asking that the Court determine his obligation to disclose this information, or assert the confidentiality privilege to the Personal Representative, who can then seek an order regarding production of the material. The Lawyer may consider producing to the Court an inventory of the arguably privileged items so that the Court can more accurately determine their proper distribution.