Bar Counsel Notes: Disclosure of Deceased Client Info

Lawyer drafted the Will for a (now deceased) client who was the father of three children. After father's death, Lawyer was then initially retained by the Personal Representative (PR), father's "number one son" to informally probate father's estate. The other two children (PR's siblings) are now contesting father's Will. Should Lawyer withdraw since she drafted the Will, or may the PR waive father's privilege and tell Lawyer to reveal the contents of decedent's file?

Withdrawal will most likely be required in situations such as this when Lawyer believes or knows she has become a necessary witness concerning father's testamentary capacity and the execution of his Will. See M. R. Prof. Conduct 3.7(a). Concerning the "waiver" issue, an attorney usually should not automatically comply with a request - including by subpoena (which should be countered with a motion to quash) - to reveal a client's confidences. Therefore, Lawyer may not waive father's privilege and should only comply with any request for such confidences pursuant to a court order. See PEC Opinion #192 and M. R. Prof Conduct 1.6(b)(6).

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.