Recently , I was faced with a question of whether an attorney-client privilege extends past death . First , I would like to thank the folks at the Tennessee Board of Professional Responsibility for helping me on this issue.
Rule of Professional Conduct 1.9(c) prohibits a lawyer from revealing information relating to representation of a former client unless;
- The client gives informed consent.
- The rules would permit with respect to the former client
- The information becomes generally known.
The main question that I had was if the privilege extended past death. The short answer is yes . There is an exception. The Board of Professional Responsibility of the Supreme Court released Formal Ethics Opinion 2014-F-158 this year. Here is the main take away from the opinion.
The bottom line is if the lawyer believes that the disclosure is in the client’s best interest if the confidence is disclosed and the client would consent to the waiver of the attorney-client privilege. So , it is the lawyers call based on the circumstances of the case.
A lawyer may disclose information relating to the representation of a deceased
client only if disclosure would further the client’s interests, and only if the lawyer
believes that the client would have consented.
Tennessee Advisory Ethics Opinion 2000-A-727, on the basis of the former Rules of
Professional Responsibility, provided in part:
Assuming that waiver or court order do not apply, we are of the opinion that the
attorney may reveal confidences and secrets if the attorney believes that the
revelation is in the best interests of the client and that the client would consent to
waiver of the attorney-client privilege…