Post-death Confidentiality of Estate Planning Communications Between Attorney and Client

So basically, when a client talks to their lawyer, everything they say is supposed to be kept private. This is called the lawyer-client confidentiality rule. It means the lawyer can’t tell anyone else what the client said, unless the client says it’s okay. This rule is different from the lawyer-client privilege, which is a rule that says the things the client tells the lawyer can’t be used as evidence in court. So even if the lawyer has to tell the court something, they still have to keep the client’s secrets private. The law protects communication between a lawyer and their client and prevents it from being forced to be revealed in court. This privilege only applies after a legal case has started, unless it’s for gathering testimony or information before a case begins. The communication must have been confidential and made during the lawyer providing legal services to the client. This privilege is different from ethical rules that lawyers must follow. As a client, you can expect that your information will not be disclosed without your permission, unless there are legal exceptions. The attorney-client privilege only applies in court or when a lawyer is called to testify. The rule of client-lawyer confidentiality applies in all other situations, even if there’s no court case. The duty to keep client information private is much broader than just not disclosing communication, and applies unless there are specific exceptions or a court order. Yes, a lawyer’s duty of confidentiality to a client continues even after the client has passed away. There are some exceptions, such as if the client’s personal representative gives permission for the lawyer to disclose information, or if the disclosure is necessary to serve the client’s interests and the client hasn’t specifically said not to disclose the information. In Florida, there are two exceptions to a lawyer’s duty to keep a deceased client’s information confidential. The first exception allows the client’s personal representative to give consent for the disclosure of the client’s confidences. The second exception allows a lawyer to reveal confidential information to serve the client’s interests, as long as the client hasn’t forbidden it. This could include situations that benefit the client’s estate plan, prevent lawsuits, protect assets, and help the family understand the client’s intentions after they’ve passed away. The Florida Bar has a rule that says lawyers have to keep their clients’ information confidential, even after the client has died. In a particular case, a lawyer was asked if they could give a copy of a deceased person’s old will to another lawyer who wanted to contest the person’s most recent will. The Bar said no, because of the confidentiality rule. However, if the old will might stop a lawsuit over the new will, it could be allowed under certain circumstances. Yes, a lawyer should be able to disclose a deceased client’s confidential communication, including a will, if it is necessary. This is allowed under professional rules, and the lawyer should not be disciplined for doing so. Even after the client’s death, the privilege against compelled disclosure still exists, and can be claimed by the deceased client’s personal representative or their lawyer. The lawyer has an ethical duty to keep their client’s information private, even after the client has passed away. If the lawyer is subpoenaed for information about a deceased client, they should try to keep that information private if they believe the client wanted it to be confidential. However, there are some exceptions to this rule, such as when the information is relevant to a dispute between people who inherited from the same deceased client. In those cases, the lawyer doesn’t have to keep the information private. The testamentary exception to lawyer-client privilege only applies when information is sought through a subpoena, so a lawyer should not voluntarily disclose client information before litigation or a subpoena is issued. The lawyer-client privilege still applies until then, and the lawyer should not disclose information without the client’s consent. Another exception is if the communication is about a client’s intention or competence when signing a document and the lawyer was a witness to it. An estate planning lawyer may have to testify about the circumstances around the signing of a will or trust if they are subpoenaed. However, they should still protect their client’s confidential information and only talk about what is necessary for the case. If the lawyer represented both the deceased person and their spouse, they may also have to disclose some information in certain situations. In general, the lawyer should not share any information about their client’s legal matters unless it is necessary for a specific reason. If a client dies, their lawyer can reveal information about their will or other documents related to their death. The lawyer can also disclose information to someone else if it would benefit the client, as long as the client didn’t say not to. However, they can’t give out information just because it’s relevant to a disagreement between people who are connected to the deceased client. The only time a lawyer has to share information is if a court tells them to. The estate planning lawyer has a duty to keep their deceased client’s information private. If they are subpoenaed, they can object to the subpoena within 10 days or give written notice to the attorney who issued it. If they haven’t been subpoenaed, they should only disclose the client’s information if it serves the client’s interest or if the personal representative agrees. If you’ve been asked to testify in court about something your client told you, you can usually keep it private. You can claim the lawyer-client privilege, which means the information is confidential and doesn’t have to be shared. Sometimes there are exceptions to this rule, but if you’re not sure, it’s best to assert the privilege and let the court decide. This is based on Florida law and guidelines from The Florida Bar. The attorney has a copy of a will from a former client who passed away. The client asked for the original will back in January and the attorney gave it to them. Now, there is a new will that might cause problems. If the attorney wants to use the old will in court, they may need a subpoena to do so. The law says that attorneys cannot reveal private information about their clients, unless it’s to stop a crime or harm to someone else. Whether the attorney has to file the copy of the will with the court is a question for the law, not for the ethics of being a lawyer. If a lawyer is asked to give out private documents, they need to decide if the information is protected by the law. If they believe it is, they should say so when asked. If a court orders them to give out the information, they can do so, but they can also appeal the decision.

Source: https://www.floridabar.org/the-florida-bar-journal/post-death-confidentiality-of-estate-planning-communications-between-attorney-and-client/