The Meaning of ‘Forever’

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Everything you learn relating to the representation of a client is confidential. It does not matter how you learned it, and it does not matter who else knows it. Unless disclosure would fit within one of a few narrow exceptions (see Rule 1.6 of the ABA Model Rules of Professional Conduct), you may not disclose anything without your client’s consent.

The obligation of confidentiality even survives a cli­ent’s death but so does the power to waive it. In most states, an executor or other personal representative may authorize the lawyer to disclose confidential information. But even then, the lawyer retains an obligation to consider the interests of the deceased client.

Two recent opinions illustrate how those conflicting obligations can create difficult choices for lawyers.

Philadelphia Bar Association Opinion 2003-11 (2003) advised a lawyer on what to do when the father of a cli­ent who had committed suicide sought information about his son. The bar’s ethics committee concluded that the information was confidential. But the committee also advised that the father, if appointed executor of the son’s estate, could authorize the lawyer to disclose the information he was seeking.

In the absence of state law specifically addressing the point, the ethics committee took its cue from the rule on representing clients under a disability. The committee concluded that, since a court may appoint a legal representative to make decisions for someone under a disability, it follows that an executor as legal representative can make decisions for someone who is dead.

Somewhat ominously, however, the committee also cautioned the lawyer not to make disclosures that he knew the son would not have wanted him to make.

Keep the Client In Mind

And what if the personal representative consenting to disclosure happens to be the very family member to whom the client didn’t want to reveal the information?

Opinion 03-04 issued earlier this year by the Nassau County Bar Association on Long Island concerned a woman who retained a lawyer to file her divorce petition. But she told the lawyer she did not want her husband to know about it until she had told her children. Ten days later, the woman died. When the husband found the check stub for the retainer fee, he asked the lawyer about it.

The bar’s ethics committee advised the lawyer to first confirm that the husband is the duly appointed executor of the estate. Then, the lawyer should try to satisfy the husband with redacted billing information and a redacted copy of the retainer agreement–in other words, take out the reference to the divorce.

If that doesn’t work, advised the committee, the lawyer will have to decide for himself if the husband is acting to protect the estate or to satisfy his own personal interests. Unless the lawyer is satisfied that the husband is acting wholly in the interests of the estate, he is not bound by the husband’s waiver of confidentiality. If the husband is dissatisfied with the lawyer’s decision, he may seek a court order; this would give the lawyer his chance to make an in camera showing and let a judge decide.

A third recent opinion shows that the confidentiality rule makes no accommodation for the interests of historical research. The ACLU Nebraska asked if it could give the state historical society some of its closed files dating back three decades. No, said the Nebraska Supreme Court Advisory Committee in Opinion 2002-1 (2002). The opinion stated that old files may not be donated “with­out a client’s consent or the consent of his guardian or conservator, or without the consent of the personal representative in the event the client is deceased.”

Elizabeth J. Cohen, a lawyer, is with the ABA Center for Professional Responsibility.

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