After a client dies, who can waive the attorney-client privilege and can the lawyer charge to handle the file?

Plain-English summary

A lawyer had provided estate-planning services to a client who was now deceased, including creating and maintaining a revocable living trust that paid for the legal services. A bank served as successor trustee on the trustor's death. Before he died, the trustor became incapacitated, and during the incapacity his stepson, a trust beneficiary, amended the trust under a durable power of attorney. The bank trustee was uncomfortable complying with those amendments, and a controversy over the beneficiaries' rights was anticipated. The lawyer asked about confidentiality obligations and whether the lawyer could charge for involvement in the dispute.

On the first question, the committee said an attorney's obligation to preserve confidences and secrets is codified in RPC 1.6 and reinforced by the attorney-client privilege statute (RCW 5.60.060(2)(a)), and that the obligation may be waived only with the client's consent after consultation. The duty does not end on the client's death, citing WSBA Formal Opinion 175 (1982) on the constraints on waiver. The committee said the person who succeeds to the authority to waive confidentiality is a matter of substantive law on which it does not opine. Absent a valid client waiver or a court order, the privilege should be asserted in response to third-party discovery requests, and confidences, client communications, and advice given should not be disclosed to third parties without a waiver or court order.

On the second question, the committee said the duty to protect confidences and secrets does not create an attorney-client relationship with the party entitled to invoke or waive the privilege, so it does not support charging fees for "participation" in the matter. The committee added that no RPC restricts charging the reasonable costs of complying with an authorized request for disclosure, such as the costs of duplicating files.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The 2006 revisions replaced the older "confidences and secrets" formulation used throughout this opinion with the broader "information relating to the representation" standard, and restructured the RPC 1.6 exceptions the committee cited; RPC 1.6 and RPC 1.9 kept their numbers. 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 mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee held that the duty of confidentiality survives the client and that, without a valid waiver or court order, the lawyer should assert the privilege against third-party requests. It treated the identity of the person who may now waive as a substantive-law question outside its charge, so it gave no answer on who could authorize disclosure of the deceased client's confidences. On the fee question, the committee held that responding to an authorized request does not form a new attorney-client relationship, so it does not justify a fee for "participation," while the reasonable costs of complying (for example, copying the file) may be charged.

Common questions

Q: Does the duty to keep a client's confidences end when the client dies?

A: No. The committee said the obligation under RPC 1.6 to preserve confidences and secrets does not end on the client's death, citing WSBA Formal Opinion 175 (1982).

Q: Who can waive a deceased client's privilege?

A: The committee said the person who succeeds to the authority to waive confidentiality is a matter of substantive law on which it does not opine; the duty may be waived only with the client's consent after consultation.

Q: What should the lawyer do with a third party's discovery request about the deceased client?

A: Absent a valid client waiver or a court order, the committee said the privilege should be asserted; confidences, communications, and advice should not be disclosed to third parties without a waiver or court order.

Q: Can the lawyer charge a fee for responding to a request about the former client's file?

A: The committee said responding does not create a new attorney-client relationship, so it does not support charging for "participation," but the lawyer may charge the reasonable costs of complying, such as the cost of duplicating files.

Background and rules framework

The opinion interprets RPC 1.6 (Model Rule 1.6, confidentiality) and RPC 1.9(b) (Model Rule 1.9, duties to former clients), and reads them alongside Washington's attorney-client privilege statute, RCW 5.60.060(2)(a). The committee used the rules to fix the lawyer's ongoing duty after the representation ended and the client died, while expressly leaving questions of who holds the power to waive, and how the privilege is administered, to substantive law and the courts.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information; waiver only with client consent)
• Model Rule 1.9 / Washington RPC 1.9(b) (duties to a former client)

Statutes:

• RCW 5.60.060(2)(a) (Washington's attorney-client privilege statute; cited in the opinion as RCW 5.60.60(2)(a))

Other opinions cited:

• WSBA Formal Opinion 175 (1982): legal and ethical constraints on waiving a deceased client's confidences

See also

• CBA Formal Op. 132: Confidentiality After Client Death
• ABA Formal Op. 92-369: Deceased Solo's Client Files
• DC Ethics Op. 299: Confidentiality After Client Closes
• WA Ethics Op. 2035: Confidences in a County Audit

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1292

Original opinion text

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

Advisory Opinion: 2041
Year Issued: 2003
RPC(s): RPC 1.6 and 1.9(b), R.C.W. 5.60.60(2)(a), Formal Opinion 175
Subject: Confidentiality; conflict of interest

The inquiring attorney provided estate planning services to a now deceased client. The representation included the creation and maintenance of a revocable living trust (the “Trust”). Legal services were provided to and paid for by the Trust. The trust agreement designated a bank as the successor trustee effective upon the death or incapacity of the trustor. The bank initially served as money manager for the Trust and became the trustee upon the death of the trustor. Prior to his death in 2003, the trustor became incapacitated. During the period of his incapacity, his stepson, a trust beneficiary, amended the trust agreement based on his status as an attorney-in-fact under a durable power of attorney. The bank trustee is “uncomfortable” complying with the amendments to the trust agreement initiated by stepson under the power of attorney. A controversy as to the rights of the trust beneficiaries is anticipated.

The inquirer asks:

1. What are the attorney’s obligations with respect to client confidences and secrets; who can waive the privilege?

An attorney’s obligation to preserve confidences and secrets is codified in RPC 1.6. See also RCW 5.60.60(2)(a). The attorney’s obligation may be waived with the client’s consent after consultation. RPC 1.6(a). The attorney’s duty to preserve confidences and secrets does not end upon the death of the client. See WSBA Formal Opinion 175 (1982) regarding the legal and ethical constraints on waiver. The person who succeeds to the authority to waive confidentiality is a matter of substantive law upon which the committee does not opine.

Absent a valid client waiver or a court order (see RPC 1.6(a) and RPC 1.6(b)(2) respectively), the privilege should be asserted in response to discovery requests from third parties.

Attorney disclosures to third parties are restricted by RPC 1.6 with respect to confidences and secrets and by RCW 5.60.60(2)(a) which prohibits an attorney from being examined “as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment”. Without specifics, it is difficult to respond to the inquiry as to whether the attorney may “share or divulge information of any kind or nature in [his] file or in [his] recollection with any [third] party”. Certainly confidences or secrets, communications with the client and advice given to the client should not be disclosed to third parties absent client waiver or court order.

2. Does the duty to protect confidences and secrets create an attorney-client relationship with the party entitled to invoke or waive the privilege so that fees may be charged for participation “of any kind or nature in the matter”?

No. The duty to protect secrets and confidences continues after the attorney-client relationships ends and the client becomes a former client. See RPC 1.6 and 1.9(b). There is no RPC restriction on charging the reasonable costs associated with complying with an authorized request for disclosure of client confidences and secrets, such as the costs of duplication of files.