Ethics Opinion

Opinion 2017-3

March 2017

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.