Summary: Where no personal representative or
other fiduciary of an estate has been appointed, a lawyer may not,
in the absence of a court order or the appointment of a personal
representative or other fiduciary, release her file concerning the
execution of the will of a deceased client to a proponent of the
will when a will contest is pending.
Facts: A lawyer inquires whether she may
release her file concerning the execution of the will of a deceased
client to "the estate's attorney" when there is a will contest
pending. No personal representative or other fiduciary has yet been
appointed by the Probate Court.
Discussion: Under Rule 1.6 of the Rules of
Professional Conduct, a lawyer has an obligation to safeguard
confidential information relating to the representation of a
client. Subject to certain narrow exceptions, such information
should not be disclosed or used for the benefit of a third person
without the client's consent. See Rule 1.6(a). The obligation to
maintain the confidentiality of client information continues after
the lawyer-client relationship ends and survives the client's
death. See Rule 1.6, Comment 20. As the Supreme Judicial Court
stated in In re John Doe Grand Jury Investigation, 408 Mass. 483
(1990): "The privilege of insisting that the attorney keep
confidential the client's disclosures made to the attorney in his
or her professional capacity belongs only to the client, and
therefore can be waived only by the client . . . or, in some
instances at least, by the executor or administrator of the
client's estate. Phillips v. Chase, 201 Mass. 444, 449 (1909),
appeal dismissed, 216 U.S. 616
(1910). Brooks v. Holden, 175 Mass. 137, 141
(1900). . . ."
In the present inquiry, since no personal representative or
other fiduciary has yet been appointed by the Probate Court for the
estate, there is no one with the power to waive the lawyer's
deceased client's attorney-client privilege or to consent to the
disclosure of confidential information relating to the
representation of the client. (For the relationship between
the attorney-client privilege and the lawyer's general duty to
protect confidential information, see Rule 1.6, Comments 2, 3, and
3A, which now defines "confidential information" as including
"information gained during or relating to the representation of a
client, whatever its source, that is . . . protected by the
attorney-client privilege . . . .). While there is a lawyer
representing the petitioner who is seeking the probate of the will,
there is as yet no "lawyer for the estate." The deceased client's
lawyer is therefore obliged to protect the client's confidential
information, and until there is a fiduciary appointed for the
estate who has the authority to consent to disclosure, the lawyer
should not permit anyone to access her files (even though the
interests of the proponent and the decedent may well be aligned)
absent a court order. While the lawyer might have a limited
ability to give information when called to testify regarding the
circumstances surrounding the execution of the will itself, the
lawyer may not release her files as requested, absent consent of an
appointed personal representative or other fiduciary of the estate
or a court order.
This advice is that of a committee without official
government status.
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on Jan. 26,
2017.