Ethics Opinion

Opinion 10-3

FLORIDA BAR ETHICS OPINION
OPINION 10-3
February 1, 2011
Advisory ethics opinions are not binding.
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.
RPC:
Opinions:
Statutes:

4-1.6
65-7, 70-40, 71-29, 72-40, 92-5
§90.502

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.