Post-death Confidentiality of Estate Planning Communications Between Attorney and Client
This article considers the ethical rule of confidentiality of client communications and, to a limited extent, the evidentiary attorney-client privilege in situations arising after the client is deceased. These situations frequently involve confidential communications between the deceased client and the client’s estate planning lawyer with respect to drafting of a will or trust that is, or may be, challenged by persons having standing following the decedent’s death. The article grew out of a project of the Probate and Trust Litigation Committee of the Real Property, Probate and Trust Law Section to examine and organize the applicable ethical and evidentiary rules. For both estate planning and trial lawyers, this article attempts to answer the question: What does the estate planning lawyer do when the phone rings and on the line is a lawyer for jilted heirs wanting to discuss a deceased client’s estate planning conversations or to obtain copies of the deceased client’s prior wills or other documents?
Distinguishing Ethical Duty of Confidentiality from Evidentiary Privilege
There is a definite distinction between the ethical duty to keep client information confidential and the rule of evidence making confidential lawyer-client communications privileged and therefore not subject to disclosure. The Comment to Rule 4-1.6 (Confidentiality of Information) of the Florida Rules of Professional Conduct states: “The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics.”
Confidentiality of Client “Information”
The ethical rule of lawyer-client confidentiality in Rule 4-1.6(a) of the Florida Rules of Professional Conduct prohibits voluntary disclosure of “information” relating to representation of a client without the client’s consent. Note that the ethical duty of confidentiality applies without any necessity for a determination that the client intended for the information to be confidential, as is necessary in the case of the evidentiary privilege.1 The ethical duty is inherent in the attorney-client relationship, and information relating to the representation is always confidential.
It follows that voluntary disclosure of communications, documents, or other information, whatever its source, is forbidden, even if the client has had the lawyer furnish copies to devisees or others, unless an exception to the rule applies.
Evidentiary Privilege Against Compelled Disclosure
The evidentiary privilege in §90.502 of the Florida Evidence Code, F.S. §§90.101-90.958, protects against compelled disclosure of a confidential client “communication” ( i.e., via subpoena), and therefore applies only after litigation has begun (except in the case of a deposition to perpetuate testimony under Fla. R. Civ. P. 1.290, or in discovery proceedings pursuant to Fla. Prob. R. 5.080, before an adversary proceeding has begun). A “communication” includes not only written and oral communication between lawyer and client concerning the preparation and drafting of a will or trust, but also the will or trust itself.2
For purposes of the evidentiary privilege, a communication must have been made during the actual rendition of legal services to the client and must be confidential, i.e., not intended to be disclosed to third persons except as provided in §90.502(1)(c) of the Evidence Code.
Official Distinction Between the Two Rules
On the subject of the basic distinction between the evidentiary and ethical rules, the Preamble to the Florida Rules of Professional Conduct states:
Moreover, these rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. Those privileges were developed to promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are ordinarily entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure.
* * *
As a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be compelled only in accordance with recognized exceptions to the attorney-client and work product privileges.
The comment to Rule 4-1.6 states the distinction simply:
The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.
Thus, it is clear that the ethical duty not to disclose client confidences ( i.e., any “information relating to representation of the client”) is much broader than the evidentiary privilege against disclosure of “communications” intended to be confidential in connection with rendition of legal services. The ethical duty applies whether or not litigation has been instituted, subject only to the exceptions stated in subparagraphs (b) and (c) of Rule 4-1.6 and to the order of a court having jurisdiction.
Does the Lawyer’s Ethical Duty of Confidentiality Survive the Client’s Death?
The answer appears to be, uniformly, yes. The Commentary on Model Rule of Professional Conduct 1.6 by the American College of Trust and Estate Counsel (ACTEC) states:
“ Obligation After Death of Client. In general, the lawyer’s duty of confidentiality continues after the death of a client. Accordingly, a lawyer ordinarily should not disclose confidential information [ i.e., any information relating to the representation] following a client’s death.”3
The following passage from an article in the Georgetown Journal of Legal Ethics states the general rule and shows, in its citations, how widely accepted the proposition is:
This article is concerned with the attorney-client privilege; whether a lawyer can be compelled to reveal in testimonial proceedings information protected by the privilege. The privilege is a rule of evidence, not a code of conduct. The distinct (but closely analogous) duty of confidentiality of the lawyer, however, is consistently recognized as continuing after the termination of the attorney-client relationship, including after the client’s death, and so precludes the attorney from revealing, outside the context of testimonial proceedings, confidential information concerning a deceased client. See Model Rules of Professional Conduct Rule 1.6 (1983); id. cmt. 21 (“The duty of confidentiality continues after the client-lawyer relationship has terminated.”) Model Code of Professional Responsibility Canon 4, DR 4-101 (1969); Restatement (Third) of the Law Governing Lawyers, §111 cmt. c, at 8 (“The duty [of confidentiality] extends beyond the end of the representation and beyond the death of the client.”); see also Bonnie Hobbs, Note, Lawyers’ Papers; Confidentiality Versus the Claims of History, 49 Wash. & Lee L. Rev. 179, 187 & n.42 (citing ethics committees’ opinions holding that the death of a client does not terminate duty of confidentiality). The duty of confidentiality yields if the attorney is ordered by a tribunal to disclose information, but the [evidentiary] privilege may still bar disclosure to the tribunal. See Restatement, supra note 7, §115; cf. infra, note 151.4
Exceptions to Ethical Duty
There are a couple of exceptions to the lawyer’s ethical duty to claim confidentiality when third parties seek information relating to the lawyer’s representation of a deceased client prior to the commencement of any litigation. The first of these exceptions applies when the decedent’s appointed and acting personal representative consents to the disclosure. The second exception is contained in subsection (c)(1) of Rule 4-1.6 of the Florida Rules of Professional Conduct, providing that a lawyer may reveal confidential information “to serve the client’s interest” as long as the client has not expressly forbidden disclosure.
With respect to the first exception, the ACTEC commentary on Model Rule 1.6 suggests that consent to disclosure of a deceased client’s confidences may be given by the decedent’s personal representative, and Rule 4-1.6 of the Rules Regulating The Florida Bar is identical to the model rule. The existence of this exception is not otherwise clear in Florida. One argument for application of the exception in Florida goes like this: A decedent’s personal representative may, under §90.502 of the Florida Evidence Code, claim the evidentiary privilege against compelled disclosure of confidential communications; obviously, a personal representative may waive the evidentiary privilege by not claiming it. The power to claim or waive the evidentiary privilege would be illusory if the personal representative were not entitled to know the substance of the confidential communications or documents. Although the ethical duty of confidentiality would prohibit disclosure of a far broader range of information than confidential communications, if the exception applies at all there seems to be no reason to limit a financially disinterested personal representative’s right to consent, prior to litigation, to disclosure by the decedent’s lawyer of any client information that would otherwise be considered confidential.
A second exception to the lawyer’s ethical duty to claim confidentiality of information received from a deceased client is contained in subsection (c)(1) of Rule 4-1.6 of the Florida Rules of Professional Conduct. It provides that a lawyer may reveal confidential information “to serve the client’s interest” as long as the client has not expressly forbidden disclosure. The ACTEC commentary on the rule states that “[a] lawyer may be impliedly authorized to make appropriate disclosure of client confidential information that would promote the client’s estate plan, forestall litigation, preserve assets, and further family understanding of the decedent’s intention. ”5 This statement gives examples of specific situations that ACTEC believes will “serve the client’s interest” in the case of a deceased client.
In Florida Bar Staff Opinion 20749 (March 9, 1998) [see Appendix 1], the question raised was whether a lawyer who had prepared a former will of a decedent (whose last will was prepared by another lawyer) could voluntarily ( i.e., without subpoena) furnish a copy of the prior will to an attorney for a potential contestant of the last will. The opinion implies that no will contest had yet been filed, indicates that the confidentiality rule (4-1.6) applies to the facts of the request (citing the comment to the rule that states that the duty “continues after the client-lawyer relationship has terminated”), and notes that none of the exceptions to the rule applied to the facts (however, keep in mind that the preamble to the Florida Rules of Professional Conduct states specifically that the comments are intended only as guides to interpretation, and do not add obligations to the rules). Although it gives no specific instruction to the inquiring lawyer, the opinion must be read as concluding that voluntary disclosure of the prior will of a deceased client is prohibited by the duty of client confidentiality. This seems evident from a reading of Rule 4-1.6(a).
Florida Bar Staff Opinion 20749 does not consider the effect of the prior will on potential litigation, or whether that would change the opinion (hence the statement in the opinion that “none of the exceptions to the confidentiality rule appear to be implicated in the instant matter”). Conceivably, if the potential contestant received the same devise under the former will as under the last will, furnishing a copy of the will to the potential contestant’s attorney may forestall litigation over the last will. According to the ACTEC commentary quoted above, a good-faith disclosure of the prior will under such circumstances would be permitted by Rule 4-1.6(c)(1). Whether The Florida Bar staff opinion might change if those were the facts and the exception under subsection 4-1.6(c)(1) could be applied is an open question.
Regardless, it is important to recognize that a lawyer should not be subject to discipline if he or she exercises professional discretion to disclose a deceased client’s confidential communication, including a will, pursuant to Rule 4-1.6(c)(1). As the preamble to Ch. 4 of the Florida Rules of Professional Conduct makes clear, rules cast in terms of “may” are rules in which a lawyer has professional discretion, and “[n]o disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion.” Rule 4-1.6(c) is a rule cast in terms of “may.” A good faith exercise of discretion under that rule should not result in disciplinary action despite the fact that the 4-1.6(a) general rule of confidentiality of client information is cast in terms of “shall not,” because 4-1.6(c) is an exception to that general rule.
Does the Evidentiary Privilege Against Compelled Disclosure Survive the Client’s Death?
In Florida, the answer is, clearly, yes. See §90.502 of the Florida Evidence Code. The more difficult question to answer is: Who is entitled to claim the deceased client’s evidentiary privilege once litigation has begun?
Section 90.502(3)(c) of the Florida Evidence Code provides that the privilege may be claimed by the personal representative of a deceased client. Section 90.502(3)(e) provides that the privilege may be claimed by the client’s lawyer. It is hardly clear from the statutory language that a lawyer is entitled to assert the evidentiary privilege on behalf of a deceased client, especially when the lawyer does not represent the decedent’s personal representative, or when no personal representative has yet been appointed.
However, the comment to Rule 4-1.6 states that the lawyer has an ethical obligation to assert the evidentiary privilege on a client’s behalf “when it is applicable.” That obligation was applied in the case of a deceased client in Florida Bar Staff Opinion 20749, which was discussed in detail above. The opinion states that the lawyer, when subpoenaed, “ should assert the privilege” on behalf of a deceased client if the lawyer believes that the information requested was intended by the client to be confidential within the scope of the statutory privilege. Keep in mind that the evidentiary privilege does not apply to all communications with a client, however, and §90.502(4) of the Evidence Code sets forth the communications to which the privilege does not apply. Any doubt about whether the information is privileged should be resolved in favor of nondisclosure and assertion of the privilege.6 Whether particular information is protected by the evidentiary privilege is a question of law, not ethics, and is therefore a matter to be ruled upon by a court.7
Section 90.502 does not provide that the evidentiary privilege may be claimed by the trustee of a decedent’s revocable trust. However, a trustee’s lack of a clear right to assert the evidentiary privilege will be irrelevant in most trust litigation because of the “testamentary exception” to the privilege, discussed below.
Exceptions to the Duty to Claim the Evidentiary Privilege
There are several statutory exceptions to the lawyer-client privilege that frequently apply in probate or trust litigation. The first, the so-called “testamentary exception,” is codified in Florida in §90.502(4)(b) of the Florida Evidence Code, but it is not limited to testamentary dispositions:
(4) There is no lawyer-client privilege under this section when:
* * *
( b) A communication is relevant to an issue between parties who claim through the same deceased client.
If the testamentary exception to the evidentiary privilege clearly applies, there is no privilege and the decedent’s estate planning lawyer need not invoke it when subpoenaed.
Because the testamentary exception is an exception to the evidentiary privilege that applies only when information is sought through subpoena, it should not be used as the basis for voluntary disclosure of client information before litigation is instituted. In other words, the ethical duty to keep client confidences prohibits voluntary disclosure based on the trial lawyer’s seductive argument that the information sought is not privileged under the Evidence Code and would be admissible in evidence because it is relevant to an issue between parties claiming through the same deceased client, and therefore can be voluntarily disclosed. The estate planning lawyer’s response should be that there is no “issue” and no “claim” until litigation has commenced, or at least until a subpoena has been issued, and until then Rule 4-1.6(a) prevents voluntary disclosure if the client, or the client’s personal representative, has not consented.
A second exception to the duty to claim the lawyer-client privilege is contained in §90.502(4)(d) of the Evidence Code, which provides:
(4) There is no lawyer-client privilege under this section when:
* * *
( d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.
Thus, an estate planning lawyer who is an attesting witness to a will or trust instrument may, pursuant to subpoena, testify with respect to the circumstances surrounding execution of the instrument, including opinions on the issue of the client’s competence at the time. The Law Revision Council note to this subsection of the Florida Evidence Code makes it clear that the exception is limited to communications “relevant to the attestation,” and that all other communications concerning the document remain privileged. Under this exception, testimony “concerning the intention” of a client is limited to the client’s intention to execute the document, and does not extend to the client’s communications of intent in regard to the disposition of the estate or having the document drafted.8
In the ordinary case, the facts and circumstances surrounding execution or attestation of a will or trust would not fall within the statutory definition of “confidential communications,” given that the purpose of attesting witnesses is to provide persons who can disclose that the requirements of execution were met. See §90.502(1)(c), Florida Evidence Code.
A third exception to the duty to claim the evidentiary privilege exists under §90.502(4)(e) of the Florida Evidence Code, which provides that when a lawyer has represented both the decedent and his or her surviving spouse in planning their estates, in litigation between the decedent’s trustee or estate and the surviving spouse the “common interest” exception may apply. In that case, an otherwise confidential communication will not be privileged.9
Rules of Thumb for Lawyer’s Exercise of Duty of Confidentiality
The following are rules of thumb for the exercise of the lawyer’s ethical duty of confidentiality to a deceased client:
1) As a general principle, on the basis of the ethical confidentiality rule the estate planning lawyer should refuse to voluntarily disclose to third parties, other than perhaps the deceased client’s personal representative when there is no conflict of interest, any “information relating to representation” of the client, including the estate planning file notes, communications with the client, unexecuted drafts of documents, copies of prior executed documents, and the like.
2) A lawyer may voluntarily disclose circumstances surrounding the execution or attestation of a deceased client’s last will, trust, or other attested document. Although no information relating to representation of the decedent, whatever its source, can be revealed unless the client has consented, a deceased client’s consent to disclosure of circumstances surrounding execution of an attested document is implied. The purpose of attesting witnesses is to provide testimony as to the proper execution of the document.
3) Notwithstanding rule of thumb No. 1 above, it is not a breach of responsibility for a lawyer to voluntarily disclose information relating to representation of a deceased client to third parties, including third parties other than the decedent’s personal representative, if, in the exercise of the lawyer’s discretion and best judgment under the exception in Rule 4-1.6(c)(1), disclosure would “serve the client’s interest,” and the client has not specifically prohibited disclosure of the information. This will usually be a tough call, and the lawyer cannot be fairly criticized for taking the safe route and refusing to voluntarily disclose information under any circumstances, even when it seems that it might serve the deceased client’s interest. The Preamble to the Rules of Professional Conduct states: “The lawyer’s exercise of discretion not to disclose information under Rule 4-1.6 should not be subject to reexamination.”
4) Information derived through representation of a deceased client during the client’s lifetime should not be voluntarily disclosed to a third party solely on the ground that it “is relevant to an issue between parties who claim through the [same] deceased client.” There is no “issue” and no “claim” until litigation has commenced, or at least until a subpoena has been issued, and this exception applies only to the evidentiary privilege. The confidentiality rule of 4-1.6(a) is absolute, except for the exceptions stated in the rule itself, unless a court orders disclosure.
5) The estate planning lawyer has an ethical duty to assert the evidentiary privilege against compelled disclosure when subpoenaed to testify or produce documents with respect to any “information relating to representation of a [deceased] client” if the lawyer believes the information is privileged under §90.502 of the Florida Evidence Code ( i.e., “not intended to be disclosed to third persons”) or is uncertain whether the privilege applies. However, if the lawyer is certain that one of the exceptions in §90.502(4) of the Florida Evidence Code applies, the evidentiary privilege does not exist, and disclosure may be made pursuant to subpoena. However, if the lawyer knows that the deceased client did not want specific information disclosed, it is probably wise to assert the privilege even though one of the exceptions may apply. Let the court tell you, the lawyer, to answer or produce documents because the privilege does not exist under the circumstances. Naturally, if the personal representative asserts the privilege, the disclosure should not be made pending a ruling of the court.
How, as a practical matter, does the estate planning lawyer assert the evidentiary attorney-client privilege? In response to a subpoena duces tecum for deposition, the estate planning attorney should assert the evidentiary privilege by filing an objection to the subpoena within 10 days, or as otherwise provided in Fla. R. Civ. P. 1.410(e). In response to a subpoena duces tecum without deposition, the estate planning attorney should assert the privilege by giving written notice to the attorney issuing or requesting issuance of the subpoena at any time before production of the requested documents is due. See Fla. R. Civ. P. 1.351(c).
Conclusion
In analyzing the principle of confidentiality owed to a deceased client, first ask yourself: “Have I been subpoenaed?” If the answer is no, the evidentiary lawyer-client privilege does not come into play. You must review Rule 4-1.6(c)(1) of the Florida Rules of Professional Conduct and determine whether the “to serve the client’s interest” exception applies. If it does not apply, in your opinion, decline to disclose any information concerning the client’s estate planning unless there is an appointed personal representative having no conflict of interest who is willing to consent to the disclosure.
If you have been subpoenaed, review §90.502, Florida Evidence Code, and determine whether you should assert the evidentiary lawyer-client privilege on the ground that the client intended for the subject communications to be confidential and not disclosed to third persons. If the answer is yes, you must determine whether an exception to the privilege applies. In the context of testimony compelled by subpoena, a lawyer can testify about matters that would be confidential under the ethics rule unless the evidentiary lawyer-client privilege applies. Assert the privilege when in doubt, and let the court tell you what to do next. q
1 See §90.502(1)(c), Florida Evidence Code.
2 Compton v. West Volusia Hospital Auth. , 727 So. 2d 379 (Fla. 5th D.C.A. 1999).
3 ACTEC Commentaries on the Model Rules of Professional Conduct 124 (3d ed. 1999).
4 Frankel, The Attorney-Client Privilege After the Death of the Client , 6 Geo. J. Legal Ethics 45, 47 n.13 (1992).
5 ACTEC Commentaries , supra note 3, at 124.
6 Fla. Bar Staff Op. 20749 (March 9, 1998).
7 Id.
8 In Re Guardianship of Muller , 650 So. 2d 698 (Fla. 4th D.C.A. 1995).
9 S ee Cone v. Culverhouse , 687 So. 2d 888 (Fla. 2d D.C.A. 1997).
Appendix 1
Florida Bar Staff Opinion 20749
March 9, 1998
Florida Bar ethics counsel are authorized by the Board of Governors of The Florida Bar to issue informal advisory ethics opinions to Florida Bar members who inquire regarding their own contemplated conduct. Opinions are not rendered regarding past conduct, questions of law, hypothetical questions or the conduct of an attorney other than the inquirer. Advisory opinions necessarily are based on the facts as provided by the inquiring attorney. Advisory opinions are intended to provide guidance to the inquiring attorney; the advisory opinion process is not designed to be a substitute for a judge’s decision or the decision of a grievance committee. The Florida Bar Procedures for Ruling on Questions of Ethics are printed at p. 836 of The Florida Bar Journal September 2002 ed.
A member of The Florida Bar has requested an advisory ethics opinion. The operative facts as presented in the inquiring attorney’s letter are as follows.
A former client of the inquiring attorney died in February 1998. The attorney has a copy of a will executed in 1996. Until January 1998, the attorney also had the original. However, in January, the former client asked for the original to be sent to her and it was done. Apparently, in January, the client made out a new will which may be contested.
Specifically, the attorney states the following:
If the attorney contesting the new will wants the file copy of the old will, in the hopes of having it reinstated, what are the rules regarding my revealing this “secret” of the now deceased client?
Do I insist on a subpoena? Do I file the file copy with the probate court? Does F.S. §732.901 control?
Pursuant to the confidentiality rule, Rule 4-1.6 of the Rules Regulating The Florida Bar, an attorney may not voluntarily reveal information relating to the representation of a client without the client’s consent. Rule 4-1.6(a). The confidentiality rule, which is very broad, applies “to all information relating to the representation, whatever its source.” Comment, Rule 4-1.6. Additionally, the comment states that the duty of confidentiality “continues after the client-lawyer relationship has terminated.”
There are times, however, when an attorney is required or, alternatively, permitted to reveal otherwise confidential information. Section (b) of Rule 4-1.6, for example, requires such disclosure to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another. Section (c) of the rule sets forth certain situations when an attorney, may, but is not required to, reveal information relating to the representation of a client. None of the exceptions to the confidentiality rule appear to be implicated in the instant matter.
While an attorney’s ethical obligation of confidentiality prohibits voluntary disclosure of confidential information, the evidentiary attorney-client privilege protects certain confidential information from compelled disclosure by other parties. In Florida, the attorney-client privilege is a statutory one set forth in Florida Statutes §90.502. Whether particular information is protected by this statutory privilege is a question of law, beyond the scope of an ethics opinion. Furthermore, whether Florida Statute §732.901 requires the attorney to file a copy of a will when the attorney does not have the original is also a legal question, beyond the scope of an ethics opinion.
If the attorney is subpoenaed to produce documents that are confidential under Rule 4-1.6, the attorney must make a good faith determination whether the requested information falls within the scope of the statutory privilege. Whether particular information is protected by this statutory privilege is a question of law, beyond the scope of an ethics opinion. Any doubts about whether the information is privileged should be resolved in favor of nondisclosure.
If the attorney believes the information sought is protected by the privilege, the attorney should assert the privilege when questioned. The comment to Rule 4-1.6 states in part: “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 where it is applicable.”
If the court orders disclosure, the attorney ethically may comply with the court’s order. The attorney may appeal the court’s order, although such an appeal is not mandatory. See Rule 4-1.6(d).
Barry F. Spivey is a graduate of Stetson University College of Law (1970) and a shareholder in the Sarasota office of Ruden, McClosky, Smith, Schuster & Russell, P.A. He is board certified in wills, trusts and estates law and concentrates his practice in estate and trust litigation as well as estate planning and administration.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Steven L. Hear, chair, and Richard R. Gans and William P. Sklar, editors.
