Advisory Opinion:
175
Year Issued:
1982
RPC(s):
RPC 1.6
Subject:
Confidentiality of Information Relating to the Representation After the Client’s Death
Under RPC 1.6(a), an attorney must maintain as confidential “information relating to the representation of the client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” Informed consent “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” RPC 1.0(e).
The RPC 1.6 confidentiality obligation continues after the client’s death. See RPC 1.6, cmt. [18] (“The duty of confidentiality continues after the client-lawyer relationship has terminated.”); RPC 1.9(c)(2) (prohibiting lawyer from revealing information relating to the representation of a former client); ABA/BNA Lawyers’ Manual on Professional Conduct, at 55:107 (“The ethical duty of confidentiality survives the client’s death,” citing ethics opinions from other jurisdictions). After death, the lawyer may disclose confidential information if the client gave informed consent before death, or if the disclosure is impliedly authorized in order to carry out the representation. For example, depending on the specific facts, disclosure of confidential client information after the client’s death to the personal representative of the client’s estate may be impliedly authorized in order that the estate will be properly and thoroughly administered. Otherwise, disclosure of confidential information is authorized only as permitted or required by RPC 1.6(b), RPC 1.9(c)(2), RPC 3.3, or RPC 4.1(b).
The Committee’s opinion is restricted to interpreting ethical duties under the Rules of Professional Conduct. We note that Washington appellate courts have long held that the statutory lawyer-client privilege, a subset of the broad information protected under RPC 1.6 (see RPC 1.6, cmt. [19]), precludes disclosure of confidential communications after the client has died. See, e.g., Martin v. Shaen, 22 Wn.2d 505, 156 P.2d 681(1945); In re Thomas’ Estate, 165 Wash. 42, 4 P.2d 837 (1931).
[amended 2009]
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