Courts uniformly have held that the attorney-client privilege survives the death of a client. Various courts and ethics opinions have also analyzed a lawyer’s responsibilities to former clients to preserve confidential information after the representation concludes. Many states have adopted the Uniform Probate Code (“Code”) that provides, upon the death of a person, the personal representative of the estate takes possession and control of the decedent’s real and personal property. The Code is silent whether personal property includes legal files held by a lawyer. Complex issues arise regarding the lawyer’s duties to her former client when the personal representative seeks files that are unrelated to the administration of the state.
Attorney-Client Privilege After Death and Other Recent Changes in the Law
A Colorado Supreme Court case decided in November 2020 addresses two seemingly inconsistent and long-standing legal maxims: (1) the attorney-client privilege survives the death of a client and (2) a decedent’s personal representative has a rite to take possession of all the decedent’s property. In In the Matter of the Estate of Louis Rabin (“Rabin”), the decedent’s personal representative asserted that she had a right to possession of all legal files in possession of the decedent’s former attorney regardless of whether the files were needed for the administration of the estate. In re Estate of Louis Rabin, 474 P.3d 1211 (Colo. 2020).
In Rabin, the attorney countered that the personal representative’s request would violate decedent’s attorney-client privilege, which survives his death. The personal representative subpoenaed the attorney for the decedent’s legal files and the lawyer moved to quash. The probate court quashed the subpoena, and the case eventually was heard by the Colorado Supreme Couty. The court held that personal representatives are not per se entitled to legal files from the decedent’s lawyers who were not involved in drafting the will being probated or who did not have files that were needed for the administration of the estate. The case was decided under Colorado’s probate code and the Colorado Rule of Professional Conduct 1.6, which is similar to the American Bar Association Model Rule 1.6.
The U.S. Supreme Court has held that the attorney-client privilege applies during the representation as well as following the death of a client. Swidler & Berlin v. United States, 524 U.S. 399, 404, 307 (1998) (Deputy White House Counsel met with an attorney about possible violations of law in connection with the firing of White House employees; the attorney took notes during the meeting, which were later sought by the government, after the Deputy White House Counsel committed suicide). See also, Restatement (third) of the Law Governing Lawyers, 60 cmt. (e) (2000). The Court noted that survival of the privilege after a client’s death is consistent with the policy of fostering candid discussions between client and lawyer so the lawyer may give advice regarding the matter. The Court noted there are certain exceptions such as the testamentary exception to allow disclosure of privileged information because “the privilege, which normally protects the client’s interest, could be impliedly waved in order to fulfill the client’s testamentary intent.” Id. at 405 (citations omitted). In other circumstances, however, the lawyer may not waive the privilege. Id. at 410-11 (Lawyer cannot reveal confidential information to federal agents after a client’s suicide).