Opinion #192: Deceased Client: Confidential Information Requested by Personal Representative

Issued by the Professional Ethics Commission

Date Issued: June 20, 2007

Question

Bar Counsel has asked whether it is a violation of M. Bar R. 3.6(h) for an attorney to disclose confidential information of a deceased client ("Decedent") to the Decedent's court-appointed Personal Representative ("PR") in circumstances where the PR has requested the information, citing M. R. Evid. 502(c) as the source of authority for waiving the lawyer-client privilege on behalf of the Decedent.

Opinion

Like many questions that are presented to this Commission, Bar Counsel's question leads us to set forth a framework for guiding attorneys in their conduct, rather than to provide an unequivocal answer. The Maine Code of Professional Responsibility ("Code") sets forth the confidentiality obligations of an attorney to a client in M. Bar R.3.6(h):

  1. Except as permitted by these rules, or when authorized in order to carry out the representation, or as required by law or by order of the court, a lawyer shall not, without informed consent, knowingly disclose or use information (except information generally known) that:
(i) Is protected by the attorney-client privilege in any jurisdiction relevant to the representation;
(ii) Is information gained in the course of representation of a client or former client for which that client or former client has requested confidential treatment;
(iii) Is information gained in the course of representation of the client or former client and the disclosure of which would be detrimental to a material interest of the client or former client. . . .

The Rule recognizes that attorneys are obligated to refuse to disclose three categories of client information: (1) information that would be considered privileged under applicable rules of evidence; (2) information that may not be privileged but that the client has asked to be kept confidential; and (3) information that would be detrimental to the client if it were disclosed. Notwithstanding this broad prohibition, however, the Rule provides two safe harbors that allow attorneys to disclose information "when authorized to carry out the representation" or "as required by law or order of the court." Id.

The general privilege provided by M. R. Evid. 502(b) permits "[a] client . . . to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client," provided that those communications are made between and among a select group of individuals, including "the client or the client's representative and the client's lawyer or the lawyer's representative." Me. R. Evid. 502(b).

For the purposes of the Rules of Evidence, "[t]he privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association or other organization, whether or not in existence." M. R. Evid. 502(c). Recognizing that a client's attorney may be in the best position to assess the risks and benefits of claiming the privilege on the client's behalf and perhaps recognizing the ethical obligations imposed upon attorneys by the provisions of M. Bar R. 3.6(h) of the Maine Code of Professional Responsibility, the Rules of Evidence also provide that "[t]he person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client." Id.

In the situation presented by the Question, the PR has decided not to "claim" the attorney-client privilege on behalf of the Decedent, but has instead decided to waive the privilege. In such a situation, we believe the attorney from whom the confidential information is sought may not rely exclusively upon the waiver by the PR, but must undertake an independent analysis pursuant to M. Bar R. 3.6(h) as to his or her own obligations with respect to the requested disclosure.

In many cases, the attorney's disclosure of information at the request of a PR will fall within the first safe harbor of M. Bar R. 3.6(h). For example, disclosure of information regarding a will's execution or a decedent's testamentary intent would ordinarily further the attorney's representation of the client. See In re Greene's Estate, 102 Me. 455, 460, 67 A. 317, 319 (1907) (holding that a PR may waive the attorney-client privilege on behalf of a decedent, because the PR is interested in the protection of the decedent's estate and "would consent to the waiver of the privileged communication only for the purpose of securing that end").

If, however, the attorney believes that the information sought to be disclosed would not further the client's purpose or would be detrimental to a material interest of the client, the attorney may waive the privilege only as required by law or by court order. Thus, despite a PR's waiver of the attorney-client privilege, the attorney may still be ethically obligated to claim the privilege on behalf of his former client if, for example, the information had been specifically sought to be kept unqualifiedly confidential by the client or if disclosure of the information would embarrass or otherwise be detrimental to a material interest of the client. See M. R. Evid. 502(c). The only safe harbor available to the attorney in that case would be a court order allowing disclosure of the information requested by the PR. See M. Bar R. 3.6(h)(1). Because the PR is the one seeking disclosure of the information, the PR will likely be the one seeking the court order compelling disclosure.


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