Does a lawyer's duty of confidentiality under RPC 1.6 continue after the client dies?

Plain-English summary

The opinion addressed whether a lawyer's duty to keep client information confidential survives the client's death. It started from RPC 1.6(a), under which a lawyer must keep confidential information relating to the representation unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by paragraph (b).

The committee concluded that the confidentiality obligation continues after the client's death. It pointed to RPC 1.6, comment [18] (the duty continues after the client-lawyer relationship has terminated), to RPC 1.9(c)(2) (barring a lawyer from revealing information relating to the representation of a former client), and to a treatise statement that the ethical duty of confidentiality survives the client's death. After death, the committee said, the lawyer may disclose confidential information only if the client gave informed consent before death or if the disclosure is impliedly authorized to carry out the representation; for example, depending on the facts, disclosure to the personal representative of the client's estate may be impliedly authorized so the estate can be properly administered. Otherwise, disclosure is authorized only as permitted or required by RPC 1.6(b), 1.9(c)(2), 3.3, or 4.1(b).

The committee noted that its opinion was limited to ethical duties under the Rules of Professional Conduct, and observed that Washington appellate courts had long held the statutory lawyer-client privilege, a subset of the broader information protected by RPC 1.6, precludes disclosure of confidential communications after the client has died.

Currency note

This opinion was issued in 1982 and amended in 2009. The amended text references the current Washington Rules of Professional Conduct (for example, the informed-consent definition in RPC 1.0(e) and the comments to RPC 1.6). Later rule amendments or opinions may still have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific provision mentioned here.

Common questions

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

A: No. The committee concluded that the RPC 1.6 confidentiality obligation continues after the client's death, citing RPC 1.6 comment [18] and RPC 1.9(c)(2).

Q: After a client dies, can the lawyer ever disclose the client's confidential information?

A: The committee said disclosure after death is permitted only if the client gave informed consent before death, if it is impliedly authorized to carry out the representation, or as otherwise permitted or required by RPC 1.6(b), 1.9(c)(2), 3.3, or 4.1(b).

Q: Can the lawyer share information with the personal representative of the estate?

A: The committee said that, depending on the specific facts, disclosure to the personal representative of the client's estate may be impliedly authorized so that the estate is properly and thoroughly administered.

Background and rules framework

The opinion interpreted RPC 1.6 (Model Rule 1.6, confidentiality of information) and its comments, RPC 1.9(c)(2) (Model Rule 1.9, duties to former clients), and the informed-consent definition in RPC 1.0(e) (Model Rule 1.0, terminology). The analysis turned on the principle that the confidentiality duty outlasts the client-lawyer relationship, including after the client's death, with disclosure limited to the rule's recognized exceptions.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6, 1.6(a), 1.6(b), and comments [18] and [19] (confidentiality; duty continues after termination)
• Model Rule 1.9 / Washington RPC 1.9(c)(2) (duties to former clients)
• Model Rule 1.0 / Washington RPC 1.0(e) (definition of informed consent)

Cases:

• Martin v. Shaen, 22 Wn.2d 505, 156 P.2d 681 (Wash. 1945), lawyer-client privilege after the client's death
• In re Thomas' Estate, 165 Wash. 42, 4 P.2d 837 (Wash. 1931), privilege and a deceased client

Other authority:

• ABA/BNA Lawyers' Manual on Professional Conduct, at 55:107 (duty of confidentiality survives the client's death)

See also

• WSBA Ethics Op. 183: Confidentiality and a Legal-Services Funder
• WSBA Ethics Op. 2099: Client Competency and Confidentiality
• WSBA Ethics Op. 1036: Client Names for Bank Financing

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1519

Original opinion text

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

Advisory Opinion: 175
Year Issued: 1982
RPC(s): RPC 1.6
Subject: Confidentiality of Information Relating to the Representation After the Client’s Death

Under RPC 1.6(a), an attorney must maintain as confidential “information relating to the representation of the client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” Informed consent “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” RPC 1.0(e).

The RPC 1.6 confidentiality obligation continues after the client’s death. See RPC 1.6, cmt. [18] (“The duty of confidentiality continues after the client-lawyer relationship has terminated.”); RPC 1.9(c)(2) (prohibiting lawyer from revealing information relating to the representation of a former client); ABA/BNA Lawyers’ Manual on Professional Conduct, at 55:107 (“The ethical duty of confidentiality survives the client’s death,” citing ethics opinions from other jurisdictions). After death, the lawyer may disclose confidential information if the client gave informed consent before death, or if the disclosure is impliedly authorized in order to carry out the representation. For example, depending on the specific facts, disclosure of confidential client information after the client’s death to the personal representative of the client’s estate may be impliedly authorized in order that the estate will be properly and thoroughly administered. Otherwise, disclosure of confidential information is authorized only as permitted or required by RPC 1.6(b), RPC 1.9(c)(2), RPC 3.3, or RPC 4.1(b).

The Committee’s opinion is restricted to interpreting ethical duties under the Rules of Professional Conduct. We note that Washington appellate courts have long held that the statutory lawyer-client privilege, a subset of the broad information protected under RPC 1.6 (see RPC 1.6, cmt. [19]), precludes disclosure of confidential communications after the client has died. See, e.g., Martin v. Shaen, 22 Wn.2d 505, 156 P.2d 681(1945); In re Thomas’ Estate, 165 Wash. 42, 4 P.2d 837 (1931).

[amended 2009]