Bar Counsel Notes: Confidentiality of Information: Release of Client's File

Attorney is concerned because a previously unknown and uninvolved person has requested a copy of that attorney's now deceased client's file. The client's matter concerns a protracted dispute which remains ongoing and does not involve the person requesting the file. The client's widow has consented to the release of the client's file. With just that indirect consent, is the attorney thereby required - or even allowed - to release the deceased client's confidential file?

No, regarding both parts of the question. See Professional Ethics Commission Advisory Opinion # 192, which clarifies the sometimes thorny issue involving confidentiality regarding deceased clients. While a surviving spouse/partner and/ or Personal Representative may deem they can waive the involved decedent's attorney/client privilege, that belief is incorrect. An attorney should only release a deceased client's file (or other confidential materials) if that client had previously agreed to such release to specific persons, or if a court orders the attorney to release the file or specific information. See M. R. Prof. Conduct 1.6(a)(iii),(b)(6). In sum, a Personal Representative or surviving spouse can assert the privilege, but cannot waive it.

*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.