My client died while I was handling her divorce, and lawyers for her estranged spouse and her child now want documents from her file for a will contest. Does my duty of confidentiality survive her death, and may I disclose?

Plain-English summary

The inquiring attorney had represented a client in a divorce action and other domestic matters. The client died during the pendency of the divorce, survived by an estranged spouse and by a child from a prior marriage. The estranged spouse produced the client's will naming the spouse as executor and engaged counsel, while the child retained counsel to try to set aside the will. Counsel for both the child and the estranged spouse asked the inquiring attorney to produce various documents and information from the deceased client's file. The attorney asked whether the attorney-client privilege extends beyond the client's death, and under what circumstances and to whom disclosure, if any, may be made.

The Panel concluded that the inquiring attorney has an obligation of confidentiality to the client that continues after the client's death, under Rule 1.6, and may not disclose the information. Rule 1.6(a) provides that a lawyer "shall not reveal information relating to representation of a client," and the Panel explained that this duty of confidentiality continues after the attorney-client relationship has terminated, including by the client's death. It distinguished the ethical duty of confidentiality from the evidentiary attorney-client privilege, noting that Rule 1.6 protects a broader range of information than the privilege does.

The Panel emphasized that its opinion pertains only to the Rules of Professional Conduct: regardless of whether the requested information is protected by the attorney-client privilege, Rule 1.6 prevents disclosure because the information relates to the representation of the client. It added that if the inquiring attorney were ordered by a court to produce the information, production would be permissible, but even then the attorney must seek to limit the disclosure.

Currency note

This opinion was issued in 1996 (Opinion 96-34, issued November 14, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as it stood at the time. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.6's confidentiality provisions and its exceptions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

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

A: No. The Panel held the Rule 1.6 duty of confidentiality continues after the attorney-client relationship terminates, including after the client's death.

Q: Is the ethical duty the same as the attorney-client privilege?

A: No. The Panel distinguished them, noting Rule 1.6 protects a broader range of information than the evidentiary privilege, so even information outside the privilege may not be disclosed if it relates to the representation.

Q: Can I turn over the file if a court orders it?

A: The Panel said production would be permissible if ordered by a court, but that even then the attorney must seek to limit the disclosure.

Q: Can the executor or the will contestants get the file just by asking?

A: Not on this opinion's reasoning. The Panel concluded Rule 1.6 barred the attorney from disclosing the information to the requesting counsel absent a court order.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.6 (confidentiality of information), the analog of Model Rule 1.6. Rule 1.6(a) bars a lawyer from revealing information relating to the representation of a client, and the Panel read the duty to survive the client's death and to reach more information than the evidentiary attorney-client privilege. The Panel treated a court order as the operative path to any disclosure, coupled with a duty to seek to limit that disclosure.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / RI RPC 1.6, 1.6(a) (confidentiality of information; duty survives termination and death)

Cases:

• In re Ethics Advisory Opinion No. 92-1, 627 A.2d 317 (R.I. 1993), Rule 1.6 protects a broader range of information than the attorney-client privilege

Other opinions cited:

• N.D. State Bar Ass'n Ethics Comm., Op. 95-11 (1995): a lawyer may not give a deceased client's will notes to relatives challenging the will unless the client consented, but must comply if a court orders production
• Pa. Bar Ass'n Comm. on Legal Ethics and Professional Responsibility, Op. 92-21 (1992): a lawyer whose client committed suicide may not testify to communications with the client, but must comply if ordered by a court
• ABA Comm. on Ethics and Professional Responsibility, Formal Op. 94-385 (1994): a lawyer has a responsibility to seek to limit a subpoena or court order on any legitimate ground to protect Rule 1.6 information

See also

• RI EAP Opinion 96-27: a lawyer must keep an agency client's medical test information confidential under Rule 1.6

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2096-34.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
OPINION NO. 96-34, REQUEST NO. 688
Issued November 14, 1996

FACTS:

The inquiring attorney represented a client in a divorce action and in other domestic matters. The client died during the pendency of the divorce action. The client is survived by the estranged spouse, and by a child from a prior marriage. The client's estranged spouse has produced the client's will which names the spouse as executor, and has engaged counsel. The client's child has retained counsel in a effort to set aside the will. Counsel for the child and counsel for the estranged spouse have requested the inquiring attorney to produce various documents and other information contained in the deceased client's file.

ISSUES PRESENTED:

The inquiring attorney asks whether the attorney-client privilege extends beyond the death of the client. The inquiring attorney further asks under what circumstances and to what extent disclosure may be made if permitted at all, and to whom permitted disclosures may be made.

OPINION:

The inquiring attorney has an obligation of confidentiality to the client which continues after the client's death, under Rule 1.6 of the Rhode Island Supreme Court Rules of Professional Conduct, and may not disclose the information.

REASONING:

Rule 1.6(a) states that a lawyer "shall not reveal information relating to representation of aclient...." The duty of confidentiality continues after the attorney-client relationship has terminated. Comment to Rule 1.6. The ethical duties of loyalty and confidentiality continue even after the relationship is terminated by the client's death. Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawering, §1.6:101, at 130 (2nd ed. Supp. 1993).

The principle of confidentiality is given effect in two related bodies of law: the rule of confidentiality established in professional ethics, and the attorney-client privilege in the law of evidence. Comment to Rule 1.6. The scope and applicability of protection of information differs markedly between the privilege and the ethical duty of confidentiality. Annotated Model Rules of Professional Conduct, at 73 (3rd ed.1996). Rule 1.6 protects from disclosure a broader range of information than would be protected under the attorney-client privilege. In re Ethics Advisory Opinion No. 92-1, 627 A.2d 317 (R.I. 1993).

The Panel emphasizes that its opinion pertains only to the Rules of Professional Conduct. Regardless of whether the information requested of the inquiring attorney is protected under the attorney-client privilege, Rule 1.6 prevents the inquiring attorney from disclosing it because it relates to the representation of the client. See id. Should the inquiring attorney be ordered by a court to produce the information, production would be permissible. See Comment to Rule 1.6 (lawyer must comply with final orders of court or other tribunal requiring lawyer to give information about client); N.D. State Bar Ass'n. Ethics Comm., Op. 95-11 (1995) (lawyer may not give notes about deceased client's will to relatives challenging will unless client consented, but if court orders production, lawyer must comply); Pa. Bar Ass'n. Comm. on Legal Ethics and Professional Responsibility, Op. 92-21 (1992) (lawyer whose client committed suicide may not testify as to communications with client, but if ordered by court to testify, lawyer must comply). Even then, the inquiring attorney must seek to limit disclosure. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 94-385 (1994) (lawyer has professional responsibility to seek to limit subpoena or court order on any legitimate ground, such as attorney-client privilege, work product immunity, burden or relevance, to protect information to which obligations under Rule 1.6 apply.)