Formal Ethics Opinion 132: Duties of Confidentiality of Will Drafter Upon Death of Testator, 1117 COBJ, Vol. 46, No. 10 Pg. 81
CBA ETHICS COMMITTEE
Adopted September 26, 2017
A lawyer's duty of confidentiality continues after the death of a client. Cf. Colo. RPC 1.6(b) (listing exceptions to requirement of confidentiality, and "death of client" not listed); Colo. RPC 1.6, cmt. [20] (duty of confidentiality continues after the client-lawyer relationship has terminated); Colo. RPC 1.9(c)(2) (lawyer may not reveal information related to representation of former client); see also Wesp v. Everson, 33 P.3d 191,200 (Colo. 2001) (attorney-client privilege continues after death of client).
Accordingly, a lawyer ordinarily should not disclose client information following a client's death. For example, if a family member is disappointed with the gift provided under a will and asks the drafting lawyer questions about the testator's intentions, the lawyer usually may not respond without violating Rule 1.6. See also American College of Trust and Estate Counsel, ACTEC Commentaries on the Model Rules of Professional Conduct, R. 1.6, at p. 80 (5th ed. 2016) (ACTEC Commentaries) (lawyer's duty of confidentiality continues after death of client).
If the decedent had authorized the drafting lawyer to make such disclosures or if the deceased client's Personal Representative (who holds the rights to the client information) gives consent, then the lawyer may provide an interested party, including a potential litigant, with client information regarding a deceased client's dispositive instruments and intent. See id. This could include prior instruments and communications relevant to those instruments. Id. The disclosure should be no broader than necessary to carry out the decedent's wishes. Id
If neither the client nor the Personal Representative has authorized the disclosure, however, there is a split of authority as to whether the lawyer may disclose client information as a matter of ethics. Some authorities contend that such a disclosure would have been "impliedly authorized" by the testator's mere retention of counsel, under the rationale that the testator presumably wanted his or her wishes followed. Id. at 88-91 (collecting conflicting ethics opinions from around the country, including Iowa Op. 98-11 (1998), which concludes that questions related to...
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