Can a lawyer give the administrator of a deceased client's estate a tape recording the lawyer made of the client's confidential discussion?

Plain-English summary

Opinion E-75-6 arose from a criminal defense. An attorney retained to defend a client against a shoplifting charge made a tape recording of the client's discussion of the matter. The client was found guilty, with the case left open for dismissal upon six months of good conduct, and then died. His widow, appointed special administrator of his estate, sought the tape recording, or a copy, for sentimental reasons, as it was the only recording of her late husband's voice; she had heard it played once and knew its contents. The question was whether the attorney could release it to her without violating the Canons of Ethics.

The committee concluded that under Canon 4 and DR 4-101, it would not be ethical or proper to disclose the contents of the tape recording to the widow, nor to release, loan, or deliver the tape. The committee limited its opinion to the facts described, which did not indicate the existence of any of the circumstances described in DR 4-101(C), the provision listing exceptions that permit disclosure.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canon 4 and DR 4-101, including the DR 4-101(C) exceptions. The current counterparts are SCR 20:1.6 / Model Rule 1.6 (confidentiality of information) and SCR 20:1.9 / Model Rule 1.9 (duties to former clients, including the surviving duty of confidentiality). 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 Treat this page as historical context, not current guidance.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 a lawyer's duty of confidentiality survive the client's death?

A: Under this opinion, yes. The committee held it would be improper to disclose or release the deceased client's tape recording, applying the confidentiality rule notwithstanding the client's death.

Q: Can the administrator of the estate obtain the client's confidential materials?

A: Not on these facts. The committee concluded the attorney could not release the tape to the widow as special administrator, where none of the DR 4-101(C) exceptions applied.

Q: Did it matter that the widow had already heard the recording?

A: The committee noted she had heard the tape once and knew its contents, but it still concluded that disclosing the contents or releasing the tape would be improper under Canon 4 and DR 4-101.

Background and rules framework

The opinion applied the former Code's Canon 4 and DR 4-101 (preservation of confidences and secrets, with the DR 4-101(C) exceptions) to a request for a deceased client's recorded discussion. The current counterparts are SCR 20:1.6 / Model Rule 1.6 (confidentiality of information) and SCR 20:1.9 / Model Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / SCR 20:1.6 (confidentiality of information); former Code Canon 4, DR 4-101, DR 4-101(C)
• Model Rule 1.9 / SCR 20:1.9 (duties to former clients)

See also

• WI Ethics Op. E-77-5: Disclosure on Consent of a Deceased Client's Personal Representative
• WI Ethics Op. E-89-11: Confidences of a Deceased Client
• WI Ethics Op. E-82-14: Destroying a Contract and Confidences of a Deceased Client

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-6.pdf