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2002 Formal Ethics Opinion 7

January 24, 2003

Disclosure of Deceased Client's Confidences in a Will Contest Proceeding

Opinion clarifies RPC 206 by ruling that a lawyer may reveal the relevant confidential information of a deceased client in a will contest proceeding if the attorney/client privilege does not apply to the lawyer's testimony.


Inquiry:

RPC 206 rules that a lawyer may disclose the confidential information of a deceased client to the personal representative of the deceased client's estate but not to the heirs of the estate. The opinion relies upon the duty of confidentiality which continues after the death of a client. That duty prohibits the lawyer from revealing the client's confidences unless the disclosure is allowed by the exceptions to the duty of confidentiality set forth the Rules of Professional Conduct. (At the time of the adoption of RPC 206, the confidentiality rule was Rule 4. During the revision of the rules in 1997, the confidentiality rule was renumbered as Rule 1.6.) The opinion states:

[A] lawyer may reveal confidential information of a deceased client if the disclosure was impliedly authorized by the client during the client's lifetime as necessary to carry out the goals of the representation. Rule 4(c)(1) [now Rule 1.6(d)(1)]. It is assumed that a client impliedly authorizes the release of confidential information to the person designated as the personal representative of his estate after his death in order that the estate might be properly and thoroughly administered.

RPC 206 does not address whether the lawyer for a deceased client may testify in a will contest or other litigation about the distribution of the decedent's estate if such testimony will require the disclosure of client confidences. May the lawyer for a deceased client testify in such litigation?

Opinion:

Yes, if the personal representative calls the lawyer as a witness in the will contest, the lawyer may testify because the personal representative consents to the disclosure. See  Rule 1.6(d)(2). Rule 1.6(d)(3) also permits a lawyer to disclose client confidences if required by law or court order. If someone other than the personal representative calls the lawyer as a witness, the lawyer may testify to relevant confidential information of the deceased client if the lawyer determines that the attorney/client privilege does not apply as a matter of law or the court orders the lawyer to testify on this basis.

RPC 206 continues to be an appropriate application of the duty of confidentiality as set forth in Rule 1.6 of the Revised Rules of Professional Conduct and is not changed by this opinion.

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