Bar Counsel Notes: Client confidences/confidentiality

Attorney A has received a request from the guardian of a minor child to turn over to that guardian A's legal file relative to his former representation of the minor child's now deceased parent. What are A's duties under the Bar Rules?

A should initially refuse to divulge the contents of his deceased client's file to the guardian. The status of the child as the heir to the deceased client does not trump A's confidentiality obligation under M. Bar R. 3.6(h). However, if (a) a personal representative is appointed by the probate court for A's former client's estate; (b) that personal representative waives the attorney/client privilege; and (c) the probate court then finds there is appropriate and sufficient cause to order A to turn over the file, then pursuant to that court order, Attorney A must do so under Bar Rule 3.6(h)(1). Otherwise, without such an order, A must refuse to comply with the guardian's initial informal request.

*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.