The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
February 1, 2011
February 1, 2011
A lawyer’s ethical obligations regarding a request for confidential information of a deceased client by the personal representative, beneficiaries or heirs-at-law of a decedent’s estate, or their counsel, will vary depending on the circumstances. A lawyer may disclose confidential information to serve the deceased client’s interests, unless the deceased client previously instructed the lawyer not to disclose the information. Whether and what information may be disclosed will depend on who is making the request, the information sought, and other factors. Doubt should be resolved in favor of nondisclosure. When compelled to disclose information via subpoena, a lawyer must disclose all information sought that is not privileged, and raise privilege as to any information for which there is a good faith basis to do so.
Opinions: 65-7, 70-40, 71-29, 72-40, 92-5
The Professional Ethics Committee has been requested by the Florida Bar Board of Governors to render an advisory opinion on the issue of the ethical obligations of a lawyer when the personal representative, beneficiaries or heirs-at-law of a decedent’s estate, or their counsel request confidential information regarding a decedent. This opinion addresses only the situation where the decedent’s lawyer does not represent the personal representative. The analysis of the issue is the same for each person who may request such information, although the answer for each will depend on the individual facts and circumstances of the particular situation and may differ, depending on who is requesting the information and why.
Although a lawyer’s ethical obligation of confidentiality and the evidentiary matter of attorney-client privilege are related, the two issues are distinct. Confidentiality is much broader than privilege. According to Rule 4-1.6, Rules of Professional Conduct, all information relating to a client’s representation is confidential and may not be voluntarily disclosed by the lawyer without either the client’s consent or the application of a relevant exception to the confidentiality rule. The comment to Rule 4-1.6 provides further guidance, in stating: “[t]he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” On the other hand, privilege is much narrower as an evidentiary matter set forth in Florida Statutes § 90.502, which provides generally that a lawyer cannot be compelled to disclose communications between a lawyer and client that were made for the purpose of seeking and/or receiving legal advice without the client’s consent or other waiver. Questions of confidentiality arise any time a lawyer is asked to disclose information relating to a client’s representation. The question of privilege only arises when a lawyer is compelled by a court, i.e. via subpoena, to disclose confidential communications made for the purpose of obtaining legal advice. Regarding privilege, the comment to Rule 4-1.6 provides as follows:
If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, rule 4-1.6(a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.
Rule 4-1.6 provides as follows:
(a) Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.
(b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent a client from committing a crime; or
(2) to prevent a death or substantial bodily harm to another.
(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to serve the client's interest unless it is information the client specifically requires not to be disclosed;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(5) to comply with the Rules of Professional Conduct.
(d) Exhaustion of Appellate Remedies. When required by a tribunal to reveal such information, a lawyer may first exhaust all appellate remedies.
(e) Limitation on Amount of Disclosure. When disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.
The comment to the rule states that “[t]he duty of confidentiality continues after the client-lawyer relationship has terminated.”
A request for information from a personal representative, beneficiaries or heirs-at-law of a decedent’s estate, or their counsel will generally involve information “relating to the representation of a client,” and a lawyer ordinarily should not voluntarily disclose such information. See Florida Ethics Opinion 92-5. There are exceptions to the confidentiality rule that either require or permit a lawyer to disclose confidential information. See Rule 4-1.6(b) and (c), Rules Regulating The Florida Bar. The Committee cannot envision every instance in which a personal representative, beneficiaries or heirs-at-law of a decedent’s estate, or their counsel may request information from a decedent’s lawyer, but will provide several examples in an effort to illustrate the appropriate analysis.
The exception to the confidentiality rule that is most likely to apply in such requests is set forth in subdivision (c)(1): “to serve the client's interest unless it is information the client specifically requires not to be disclosed.” Thus, if a personal representative asks for confidential information relating to a decedent’s estate plan and the decedent’s lawyer determines that disclosure of the information would aid in the proper distribution of the decedent’s estate according to the decedent’s wishes, the lawyer may properly disclose the information to the personal representative, unless the decedent specifically required that the information be kept confidential. For example, in Florida Ethics Opinion 72-40, a client instructed the inquiring lawyer who was hired to assist the client with estate planning to “forget” that the client had a “large amount of bearer bonds, registered jointly with his wife.” The opinion concludes that the lawyer may not disclose the existence of these assets to the bank which was to be the sole executor of the client’s estate unless the client gave consent to the disclosure or unless ordered to do so by a court, whether the inquiry was made before or after the client’s death. The opinion states that “the duty to preserve a client’s confidences survives his death. . . .” Thus, a lawyer must undertake the appropriate analysis under the confidentiality rule, even if it is the personal representative who requests information of the decedent from a lawyer who assisted in the decedent’s estate planning and the information sought relates specifically to that estate plan.
Similarly, if a beneficiary or heir-at-law asks for specific information and the decedent’s lawyer determines that voluntary disclosure of the information would serve the decedent’s interests, the lawyer may disclose that specific information. For example, a lawyer might provide a copy of the decedent’s will or disclose information relating to the execution of a will to a beneficiary or heir-at-law if the lawyer reasonably believes that disclosure of the information would forestall litigation by the beneficiary or heir-at-law, thereby conserving assets of the estate in the exercise of the lawyer’s professional discretion. However, information that the decedent specifically required the lawyer not to disclose to others may not be disclosed by the lawyer to the beneficiary or heir-at-law, regardless of whether the information is privileged. For example, a deceased client may have specifically instructed the lawyer not to disclose information to anyone about a child born out of wedlock or an extra-marital relationship.
Under Florida Statutes §90.502(3)(c), the personal representative may claim the privilege on behalf of the decedent. It would be difficult for the personal representative to claim or waive privilege on behalf of the decedent without knowing the content of the information which is subject to the privilege. Therefore, a lawyer who represented the decedent in estate planning matters may disclose information from the file to the personal representative, unless the decedent specifically required that the information not be disclosed. Disclosure of such information is impliedly authorized, to the extent the decedent did not specifically require that its confidentiality be maintained, to carry out the decedent’s wishes involving the estate.
On the other hand, a lawyer who represented the decedent on matters other than estate planning would have no such implied authorization to disclose information to the personal representative. For example, a lawyer who represented a client in a criminal defense matter would not have implied authorization to disclose information to the personal representative, but instead should decline to voluntarily provide information to the personal representative or other third parties unless an exception to the confidentiality rule clearly applies.
Similarly, beneficiaries or heirs-at-law may attempt to compel the decedent’s lawyer to provide information that the lawyer has determined within the lawyer’s professional discretion not to provide voluntarily, because either disclosure would not serve the decedent’s interests or the decedent has previously indicated that the information must not be disclosed. When under compulsion of a subpoena, the lawyer acts ethically by complying with the subpoena as to any information sought that is not privileged. However, the lawyer should raise the appropriate privilege on behalf of the decedent regarding any information for which there is a good faith basis to raise privilege and request that the court make a determination as to disclosure of the information. As above, the lawyer should not make any disclosure of information which the lawyer believes in good faith to be privileged until the court orders disclosure of the information. If the court finds that the information is not privileged or that an exception to privilege applies, the lawyer may either comply with the order by disclosing the information or “first exhaust all appellate remedies.” See Rule 4-1.6(d) and Florida Ethics Opinions 65-7, 70-40, and 71-29.
Doubts about whether information should be voluntarily disclosed should be resolved in favor of nondisclosure.