Post-death confidentiality of estate planning communications between attorney and client.

• Author: Spivey, Barry F.

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 [section] 90.502 of the Florida Evidence Code, F.S. [subsections] 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 [section] 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...