Can a lawyer reveal a deceased client's confidential information to prevent harm to someone else, such as to keep an innocent person out of prison?

Plain-English summary

Opinion E-89-11 asked to what extent a lawyer may reveal information relating to the representation of a deceased client to prevent unjust harm to a third person. The committee began from its earlier Formal Opinion E-82-14, which held that the duty of an attorney to preserve a client's secrets and confidences does not end with the client's death but continues indefinitely unless disclosure is consented to, ordered by the court, or the attorney-client privilege is waived. The committee also cited Formal Opinion E-77-5, the "Former Client" Comment to SCR 20:1.6, an A.L.R. annotation, and Wis. Stats. section 905.03(3) and (4)(b), and emphasized that SCR 20:1.6 covers all information relating to the representation, not merely secrets and confidences.

The committee acknowledged that exceptions to the rules of confidentiality and to the law of privilege exist that may permit or require disclosure, citing SCR 20:1.6(b) and (c) and Wis. Stats. section 905.03(4). It cautioned, however, that these exceptions may not include circumstances that could present a lawyer with a serious moral dilemma, posing as an example a lawyer who holds confidential and privileged information from a deceased client that, if revealed, would prevent an innocent person from being imprisoned. The committee concluded that circumstances may exist in which a lawyer is precluded by disciplinary rules and other law from revealing such information, and that whether a lawyer would decide to risk disciplinary sanctions and possible civil liability would depend on the lawyer's assessment of a number of factors and the strength of the lawyer's moral conviction that disclosure was necessary. Noting that whether courts would read a "moral compulsion" exception into the rule is uncertain (quoting Hazard and Hodes), the committee concluded that such moral dilemmas must be resolved by individual lawyers based on the specific circumstances, and expressed the hope that disciplinary agencies and courts would react in a manner that encourages sound discretion to prevent serious harm to innocent persons.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 confidentiality end when the client dies?

A: No. The committee concluded that the duty to preserve a client's secrets and confidences continues indefinitely after death unless disclosure is consented to, ordered by a court, or the privilege is waived.

Q: Can a lawyer reveal a deceased client's confidences to prevent harm to someone else?

A: Not freely. The committee concluded that while exceptions to confidentiality and privilege exist, they may not cover moral-dilemma situations, so a lawyer may be precluded from revealing the information even to prevent harm.

Q: How is such a moral dilemma resolved?

A: By the individual lawyer. The committee concluded that these dilemmas must be resolved by individual lawyers based on the specific circumstances, weighing the risk of discipline and civil liability against the strength of the lawyer's moral conviction.

Background and rules framework

The opinion interpreted SCR 20:1.6 / Model Rule 1.6 (confidentiality of information), including its exceptions in subsections (b) and (c) and its "Former Client" Comment, alongside SCR 20:1.9 / Model Rule 1.9 (duties to former clients), and read them with the lawyer-client privilege statute, Wis. Stats. section 905.03, in the context of a deceased client.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality of information)
• Wis. SCR 20:1.9 / Model Rule 1.9 (duties to former clients)

Statutes:

• Wis. Stat. section 905.03(3), (4) (lawyer-client privilege)

Other opinions cited:

• Wisconsin Formal Op. E-82-14; Wisconsin Formal Op. E-77-5
• Hazard and Hodes, The Law of Lawyering (1985, 1988 Supp.)

See also

• WI Ethics Op. E-90-3: Client Identity on IRS Form 8300
• WI Ethics Op. EF-17-02: Client Identity Is Confidential
• WI Ethics Op. E-89-12: Reporting Opposing Counsel

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-11.pdf