11.09. Reading: North Dakota Ethics Op. No. 95-11 (1995)

Reading Guide

Preparing for the Reading:
This ethics opinion provides a nice contrast between the Attorney-Client Privilege and the ethical duty of confidentiality.

Issues:
– Be sure to get a good grip on the underlying factual scenario here. – – Who is demanding what from whom?
– Is the information sought here protected by the attorney-client privilege? Why or why not?
– Is the information sought here protected by the Rule 1.6 duty of confidentiality? Why or why not?
– Are the relatives forever barred from getting the communications between the deceased and the lawyer? If not – how can they appropriately obtain the information?

North Dakota Ethics Op. No. 95-11

State Bar Association of North Dakota Ethics Committee, 1995

The Committee has received a request for an opinion regarding whether an attorney may disclose to a deceased client’s relatives notes and information concerning his preparation and the client’s execution of the client’s will.

Facts

The attorney requesting the opinion prepared a will for a client several years ago. In that will the client left the entire estate, other than token bequests, to a friend and left nothing to any members of the client’s family. The client is now deceased and the attorney’s firm has not been retained to probate the will. Certain of the client’s relatives who were left nothing in the will have contacted another law firm and are apparently considering challenging the will. They have asked the attorney requesting the opinion to give them his notes concerning the process of preparing and executing the will. The attorney would like to furnish these relatives with his notes and all the information he has on this subject if that action is permissible. He asks whether he may give this information to them ethically.

Discussion

Rule 1.6, N.D.R. Professional Conduct provides in relevant part:

[quoting North Dakota Rule 1.6 which is essentially identical to MRPC]

The Rules of Professional Conduct establish that an inquiry as to what a lawyer may reveal pursuant to Rule 1.6 is distinct from judicial application of the rules of attorney-client privilege. As stated in the Rules of Professional Conduct,

These Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. Those privileges were developed to promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under the Rules has a limited discretion or duty to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges.

Scope, N.D.R. Professional Conduct.[1] Further, the Comment to Rule 1.6 states:

[Comment 1]

[Comment 3]

[Comment 18]

The Connecticut Bar Association Committee on Professional Ethics has opined that “[t]he principal [sic] of confidentiality is governed by two related bodies of law: (1) the attorney-client privilege in the law of evidence; and (2) the rule of confidentiality established in professional ethics . … The ethical duty of confidentiality is broader than the evidentiary privilege for attorney-client communications. The ethical duty applies to all information that relates to the representation of a client. Moreover, this duty applies in all contexts, not just those where a lawyer is acting as a witness.” Ct Bar Ass’n Comm’ee on Professional Ethics, Informal Opinion 96-6 (Feb. 7, 1994).

The Connecticut opinion concerned a situation in which there was a dispute while the client was still alive, although incompetent, about the disposition of the client’s property after the client’s death. The issue was whether the attorney could disclose information about his client’s intentions with regard to disposition of her property. The committee cited the “implied waiver” section of Rule 1.6 (“A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . .”) and concluded that because his client had not consented, the attorney could make no disclosure of his communications with the client until the client’s will was admitted to probate. The committee decided that when the will was probated, the implied waiver exception would likely allow the attorney to testify concerning the client’s statements. The opinion also noted that it addressed only the ethical duty of confidentiality and if a court ordered the attorney disclose the information, the attorney must comply with the court’s orders. Id.

* * *

The mandatory language of Rule 1.6(a) prohibits you from disclosing the contents of the Will to the children or their attorney, as your client, the Testator, has not authorized you to do so. The earlier Will constitutes confidential information relating to your representation of the Testator, and your duty not to reveal its contents continues even after your client’s death . . . This opinion does not address whether a court of competent jurisdiction may order you to produce the earlier Will, or whether applicable substantive law would allow the personal representative to waive the attorney client privilege.

Id.

Under North Dakota evidence law the attorney-client privilege may not attach to otherwise confidential communications between a lawyer and a deceased client under certain circumstances. Specifically, N.D.R. Evid. 502(d) establishes that there is no privilege, “[a]s to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.” As the North Dakota Supreme Court stated in In re Graf’s Estate, 119 N.W.2d 478, 481 (N.D. 1963),

There are . . . certain exceptions to the general rule that communications between attorneys and clients are privileged . …

[T]he confidential nature of communications between attorney and client is not recognized, and this privilege is no longer applicable, in litigation which occurs after the client’s death, which litigation is between parties, all of whom claim under the client. Where the litigation is to determine who shall take the property of the deceased and all parties claim under the client, neither party to the litigation can claim that such communications are privileged. Between persons claiming under the deceased client and others who are not heirs, next of kin, legatees, or devisees of the testator, the privilege still would survive.

The reason for this exception to the general rule of holding communications between attorney and client as privileged, is sound. In controversies between heirs at law, devisees, legatees, or next of kin of the client, such communications should not be held as privileged because, in such case, the proceedings are not adverse to the estate. The interest of the estate as well as the interest of the deceased client demand that the truth be determined.

Accordingly, under North Carolina evidence law, in a controversy not adverse to the estate and involving an issue between parties who claim through the deceased client, a court may hold attorney-client privilege does not prohibit an attorney from revealing otherwise privileged relevant communications with the deceased client to the deceased client’s heirs at law, next of kin, devisees, legatees, and personal representatives. However, as discussed above, that rule of substantive law is distinct from the ethical inquiry. In some circumstances the Rules of Professional Conduct prohibit voluntary disclosure of client information outside of litigation even if a court were to find that testimony concerning that information would not be privileged under North Dakota evidence law.

Conclusion

Based on Rule 1.6, absent a court order, you may not disclose confidential information concerning your preparation and the execution of your deceased client’s will to the relatives who are seeking to challenge the will unless your client consented the disclosure or some other basis for revelation or use established by Rule 1.6 applies. If, however, a court finds that the information is not protected by the attorney-client privilege and orders you to produce the information you must do so.

[1] [This is not in the Model Rules of Professional Conduct, but a true statement. —ed.]