Can a lawyer disclose a deceased client's confidential statements if the personal representative waives the attorney-client privilege?

Plain-English summary

Opinion E-77-5 arose from an attorney who had been consulted by a husband and wife to draft wills. Their conversation included discussion of appointing a guardian for their minor children, with several possible guardians suggested and their advisability debated, but no guardian was agreed upon before the clients died. With the will in probate, the guardian ad litem asked the attorney to testify about that conversation, and the personal representative appeared willing to consent to waiver of the attorney-client privilege. The question was whether it is ethically proper for the attorney to disclose the confidential conversation on the personal representative's consent.

The committee answered that a personal representative may consent to the waiver of the privilege, and that the attorney discharges his ethical duty if he complies with a court ruling that he must disclose, after raising any objection he has. It explained that Wis. Stat. §§ 905.03(3) and 905.11 extend the privilege to a deceased client's personal representative and allow whoever holds the privilege to waive it. Citing ABA Formal Opinion 91 (1933) and Informal Opinion 1293 (1974), the committee noted the general rule that an attorney may disclose a privileged communication after the client's death, for the benefit of the estate, with the personal representative's consent, on the rationale that the personal representative's interest is assumed identical to the deceased client's interest in protecting the estate and furthering the client's testamentary intent.

The committee observed that this situation differed: disclosing the clients' opinions about the advisability of particular persons as guardians would not shed light on testamentary intent, and could be detrimental to the deceased clients' character or reputation, a circumstance Formal Opinion 91 recognized as a possible exception to the personal representative's power to waive (citing Appeal of LeProhon). It said an argument could be made that the attorney should not be required to disclose. But it concluded that if the court rejects that argument and orders the testimony, the attorney is not subject to discipline for complying, relying on Estate of Hoehl (1923), in which the Wisconsin Supreme Court said an attorney performs his full duty to the court and the client by raising the objection and submitting to the court's decision.

Currency note

This opinion was issued in 1977, 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 (EC 4-4) together with the evidentiary privilege statutes (Wis. Stat. §§ 905.03(3), 905.11). The current counterparts are SCR 20:1.6 / Model Rule 1.6 (confidentiality of information) and SCR 20:1.9(c) / Model Rule 1.9(c) (use and disclosure of a former client's information). 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: Can a deceased client's personal representative waive the attorney-client privilege?

A: Yes. The committee said a personal representative may consent to waive the privilege, which the evidentiary statutes extend to the personal representative of a deceased client.

Q: Must the attorney testify once the personal representative waives?

A: The committee said the attorney may raise any objection he has, for example that disclosing the clients' opinions about possible guardians would not benefit the estate and could harm the deceased clients' reputation, but that he discharges his ethical duty by objecting and then complying with the court's ruling.

Q: Is there an exception when disclosure would harm the deceased client's reputation?

A: The committee noted that Formal Opinion 91 recognized such an exception and that an argument could be made for it here, but it found no Wisconsin case deciding whether the exception applies and left the question to the court.

Background and rules framework

The opinion interpreted the former Code's confidentiality duty (Canon 4, EC 4-4) alongside the evidentiary attorney-client privilege statutes governing waiver by a deceased client's personal representative. The current counterparts are SCR 20:1.6 / Model Rule 1.6 (confidentiality) and SCR 20:1.9(c) / Model Rule 1.9(c) (former-client information).

Citations and references

Rules of Professional Conduct:

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

Statutes:

• Wis. Stat. § 905.03(3) (attorney-client privilege; personal representative)
• Wis. Stat. § 905.11 (waiver of privilege)

Cases:

• Estate of Hoehl, 181 Wis. 190, 193 N.W. 514 (1923), attorney's duty on a court order to testify
• Appeal of LeProhon, 102 Me. 455, 67 Atl. 317, exception where disclosure affects the deceased's reputation

Other opinions cited:

• ABA Formal Opinion 91 (1933) and Informal Opinions 1293 (1974) and 312: disclosure after a client's death

See also

• 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
• WI Ethics Op. E-82-3: City Attorney Called as an Adverse Witness

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-77-5.pdf