Does a lawyer's duty to protect a client's confidences end when the client dies?

Plain-English summary

An attorney had represented a corporation owned by a sole shareholder, and that shareholder had also consulted the attorney on a domestic-relations matter. After the shareholder's death, his widow and sole heir to the stock became the defendant in an unrelated suit, and the question was whether the attorney could represent the plaintiff against her. (The committee noted the matter was simultaneously in the disciplinary process and that it is not constituted to resolve factual disputes.)

The committee identified DR 4-101(B) as controlling: a lawyer must not knowingly reveal a client's confidence or secret, or use it to the client's disadvantage or for the lawyer's or a third person's advantage, without the client's consent after full disclosure. Whether the attorney's discussions with the widow or his continued representation of the corporation created an attorney-client relationship with her was a factual question beyond the committee's purview; but if such a relationship existed and the attorney had gained her confidences, he could not reveal or use them and might violate DR 4-101(B) by representing the plaintiff (citing LE Op. 441, 672, 792).

On the central point, the committee concluded that although the Virginia Code was not explicit, the attorney's responsibility to protect a client's secrets and confidences survives the client's death. A lawyer may reveal a deceased client's confidences only if he reasonably believes, in his own best judgment, that doing so would be in the deceased client's best interest, as the client would have wanted if alive. The committee expressly overruled LE Op. 812 (June 25, 1986) to the extent inconsistent, citing LE Op. 928, Alabama Opinion 85-70, Los Angeles County Bar Association Formal Opinion No. 414, Maryland Opinion No. 85-37, EC 4-6, and EC 7-12.

Currency note

This opinion was issued in 1989, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The confidentiality duty is now within Rule 1.6, and former-client duties within Rule 1.9; the committee note points to Rule 1.6(a), which impliedly authorizes revealing confidences to carry out the representation. 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 mentioned here.

Common questions

Q: Does the duty of confidentiality end when a client dies?

A: Under this 1989 opinion, no. The committee concluded the duty to protect a client's secrets and confidences survives the client's death.

Q: When could a lawyer reveal a deceased client's confidences?

A: The committee said only if the lawyer reasonably believes, in his own best judgment, that revealing them would serve the deceased client's best interest, as the client would have wanted if alive.

Q: Could the attorney represent the plaintiff against the widow?

A: The committee said whether an attorney-client relationship with the widow existed was a factual question beyond its purview, but that if it did and the attorney had her confidences, he might violate DR 4-101(B) by representing the plaintiff.

Background and rules framework

The opinion interpreted former Virginia DR 4-101(B) (not revealing or using a client's confidences and secrets without consent), along with the aspirational EC 4-6 and EC 7-12. Confidentiality is now governed by Virginia Rule 1.6 and former-client conflicts by Rule 1.9.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 4-101(B) (confidences and secrets); EC 4-6; EC 7-12
• ABA Model Rule 1.6 (confidentiality); Model Rule 1.9 (former clients)

Other opinions cited:

• Virginia LE Op. 441; LE Op. 672; LE Op. 792; LE Op. 928: confidentiality and former-client duties.
• Virginia LE Op. 812 (overruled to the extent inconsistent).
• Alabama Opinion 85-70; Los Angeles County Bar Formal Op. 414; Maryland Opinion 85-37: confidentiality surviving death.

See also

• FL Bar Op. 10-3: Deceased Client's Confidential Information
• VA LEO 1299: Former Government Lawyer and Enduring Confidences
• VA LEO 1811: A Former Client's File and Confidentiality
• VA LEO 1844: Guardian Ad Litem Confidentiality

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1207.pdf

Original opinion text

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

Committee Opinion
May 2, 1989
LEGAL ETHICS OPINION 1207

ATTORNEY/CLIENT RELATIONSHIP – CONFIDENTIALITY AND SECRETS – DECEASED CLIENT: REVEALING CLIENT’S SECRETS AND USING THEM TO DETRIMENT OF CLIENT.

Since the matter you referred to in your inquiry is simultaneously being considered within the disciplinary process, the Committee provides this opinion based upon the specific facts provided in your inquiry. You should be further advised that the Committee is not constituted to resolve disputes.

FACTS: An attorney has represented a corporation owned by a sole shareholder and sole shareholder has also consulted the attorney on a domestic relations matter. Following the death of the sole shareholder, his widow and sole heir to the stock is the defendant in a nonrelated suit.

ISSUE: May the attorney represent the plaintiff in the nonrelated suit?

The appropriate and controlling disciplinary rule relative to your inquiry is DR:4-101(B), which provides that a lawyer shall not knowingly reveal a confidence or secret of this client or use the same to the disadvantage of the client or for his own advantage or the advantage of a third person, unless the client consents after full disclosure.

Whether or not any discussions between the lawyer and the widow, either before or after her husband's death, or the continued representation of the corporation after the husband's death, created an attorney-client relationship with the widow, is a factual determination which is beyond the purview of the Committee. If an attorney-client relationship did exist, then the attorney could not reveal or use any secrets or confidences gained from the widow, including her knowledge or lack of knowledge of her husband's financial affairs. Thus, if the relationship is found to have existed and if the attorney gained secrets or confidences of the widow, he may be in danger of violating DR:4-101(B) if he represents the plaintiff. (See LE Op. 441, LE Op. 672, LE Op. 792)

Although the Virginia Code of Professional Responsibility as presently drafted is not explicit on this point, the Committee opines that the attorney's responsibility to protect a client's secrets and confidences survives the death of the client. Therefore, a lawyer may not reveal secrets and confidences of a deceased client unless the lawyer reasonably believes, in the exercise of his own best judgment, that to do so would be in the best interest of the deceased client, who would have wanted the information revealed if he were alive. To the extent that this opinion is inconsistent with LE Op. 812, rendered on June 25, 1986, LE Op. 812 is hereby overruled. (See LE Op. 928; Alabama Opinion 85-70; Los Angeles County Bar Association Formal Opinion No. 414; Maryland Opinion No. 85-37; EC:4-6; EC:7-12)

Committee Opinion
May 2, 1989

Legal Ethics Committee Notes. – See also Rule 1.6(a) which impliedly authorizes a lawyer to reveal confidences and secrets of a client in order to carry out the representation.