It’s a situation that estate planning petitioners sometimes encounter: a relative of a recently deceased client requests a copy of the attorney’s file relating to the execution of the decedent’s will. Sometimes it’s the proponent of the will. Sometimes it’s a disappointed heir who has mounted (or is considering) a will contest. Maybe the file contains information that can clear the air and resolve (or avoid) the dispute. What’s the attorney to do? An opinion recently issued by the Massachusetts Bar Association Ethics Committee offers some guidance.
An attorney’s duty to maintain the confidentiality of client information, established by Rule 1.6 of the Massachusetts Rules of Professional Conduct, is not extinguished when the client dies. Aside from a few limited exceptions, confidential information cannot be disclosed without the client’s consent. In cases where no personal representative has been appointed—such as when there is a will contest, or when there are competing petitions for appointment—there is no one with authority to allow the attorney to disclose the deceased client’s confidential information, and the drafting attorney is left in an awkward spot.
The opinion concludes that, “until there is a fiduciary appointed for the estate who has the authority to consent to the disclosure, the lawyer should not permit anyone to access her files … absent a court order.”
Several years ago, the Massachusetts Board of Bar Overseers published a helpful article on this topic, called “Death And Confidentiality.” The BBO article notes that, if subpoenaed, a drafting attorney may be compelled to testify about certain topics relevant to a will contest. However, the BBO article states that the attorney should nevertheless resist a request for the attorney’s file unless the disclosure is authorized by a duly-appointed personal representative or ordered by the court.