Advisory Opinion: 2041

Year Issued: 2003

RPC(s): RPC 1.6 and 1.9(b), R.C.W. 5.60.60(2)(a), Formal Opinion 175

Subject: Confidentiality; conflict of interest

The inquiring attorney provided estate planning services to a now deceased client. The representation included the creation and maintenance of a revocable living trust (the “Trust”). Legal services were provided to and paid for by the Trust. The trust agreement designated a bank as the successor trustee effective upon the death or incapacity of the trustor. The bank initially served as money manager for the Trust and became the trustee upon the death of the trustor. Prior to his death in 2003, the trustor became incapacitated. During the period of his incapacity, his stepson, a trust beneficiary, amended the trust agreement based on his status as an attorney-in-fact under a durable power of attorney. The bank trustee is “uncomfortable” complying with the amendments to the trust agreement initiated by stepson under the power of attorney. A controversy as to the rights of the trust beneficiaries is anticipated.

The inquirer asks:

1. What are the attorney’s obligations with respect to client confidences and secrets; who can waive the privilege?

An attorney’s obligation to preserve confidences and secrets is codified in RPC 1.6. See also RCW 5.60.60(2)(a). The attorney’s obligation may be waived with the client’s consent after consultation. RPC 1.6(a). The attorney’s duty to preserve confidences and secrets does not end upon the death of the client. See WSBA Formal Opinion 175 (1982) regarding the legal and ethical constraints on waiver. The person who succeeds to the authority to waive confidentiality is a matter of substantive law upon which the committee does not opine.

Absent a valid client waiver or a court order (see RPC 1.6(a) and RPC 1.6(b)(2) respectively), the privilege should be asserted in response to discovery requests from third parties.

Attorney disclosures to third parties are restricted by RPC 1.6 with respect to confidences and secrets and by RCW 5.60.60(2)(a) which prohibits an attorney from being examined “as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment”. Without specifics, it is difficult to respond to the inquiry as to whether the attorney may “share or divulge information of any kind or nature in [his] file or in [his] recollection with any [third] party”. Certainly confidences or secrets, communications with the client and advice given to the client should not be disclosed to third parties absent client waiver or court order.

2. Does the duty to protect confidences and secrets create an attorney-client relationship with the party entitled to invoke or waive the privilege so that fees may be charged for participation “of any kind or nature in the matter”?

No. The duty to protect secrets and confidences continues after the attorney-client relationships ends and the client becomes a former client. See RPC 1.6 and 1.9(b). There is no RPC restriction on charging the reasonable costs associated with complying with an authorized request for disclosure of client confidences and secrets, such as the costs of duplication of files.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.