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There's a Caveat - Responding to Requests For Your Estate File

by Laura Loyek |

If the calls we receive at Lawyers Mutual are any indication, there has been a significant increase in estate litigation in recent years. A consequence of all that litigation is that estate planning attorneys are regularly receiving requests for their client files. The request may take the form of an informal phone call, or it might be a formal subpoena. Responding to these requests can be tricky. Especially when the client is deceased, determining what should be turned over and to whom involves careful evaluation of attorney-client privilege and confidentiality issues.

Scenario #1

Your client (who is alive and well) calls to request a copy of his file for estate planning work you completed a few years ago.  He has moved and is working with a new attorney to update his estate plan.  Under Rule 1.16(d) and Comment [10], it is clear that the file should be provided to the client.  A lawyer is permitted to remove personal notes and incomplete work product before turning over the file.  We recommend retaining a copy for your own records and getting a signed receipt from the client acknowledging that the file was returned or transferred to a new attorney.  (A sample “Acknowledgement of Receipt of File” and “Authorization for Transfer of Client File” can be found in our File Management: Retention and Destruction Practice Guide.)

Scenario #2

The daughter of a longtime client calls to say that her mother recently passed away. The daughter would like to pick up a copy of her mother’s estate planning file. Without knowing more, you should NOT turn over the file or reveal any confidential information to the daughter.

Under North Carolina case law, attorney-client privilege survives the death of the client. In re Miller, 357 N.C. 316, 323, 584 S.E.2d 772, 779 (2003). Privileged information cannot be divulged except under narrow circumstances and ideally with the protection of a court order. 

The concept of confidentiality is broader than privilege and includes any information acquired during the representation of a client, even if it is public knowledge or available from other sources. (Rule of Professional Conduct 1.6)  Ethics rules allow the personal representative of an estate to authorize disclosure of confidential information if such disclosure would not be clearly contrary to the goals of the original representation or contrary to express instructions given by the client before his death. RPC 206. The reasoning behind this rule is that the client has impliedly authorized the lawyer to disclose confidential information necessary to carry out the client’s wishes and facilitate the proper administration of the estate. 

As an estate planning lawyer, it is important to remember that heirs and beneficiaries are not your clients, and their status as beneficiaries does not entitle them to receive confidential information. In this scenario, if the daughter establishes that she has qualified as the personal representative of her mother’s estate, she may then be entitled to receive and authorize the release of confidential information.

Scenario #3

Your calm Friday afternoon is ruined when you are served with a subpoena seeking production of your file and your testimony as a witness in a pending caveat action.  One of the exceptions to confidentiality under Rule 1.6(b) is to comply with “the law or court order.”  Because compliance with a subpoena is required by law, a lawyer who is served with a subpoena may reveal confidential – but not privileged – information.  

The first step in responding to the subpoena is usually contacting the personal representative to determine whether he consents to the disclosure. You also need to consider whether there are other grounds to object to the subpoena (for example, that it seeks work product or is overly burdensome). 

Where the parties are contesting the validity of a will, the drafting attorney has information that is particularly relevant, including interactions with the client at the time of execution and direct communications regarding the client’s wishes. For this reason, North Carolina case law recognizes a limited testamentary exception to attorney-client privilege in a caveat proceeding. This testamentary exception applies only in litigation after the client’s death (such as a will caveat) where all parties claim under the client; only to the attorney who drafted the will; and only to communications about the will.  See In re Will of Kemp, 236 N.C. 680, 684, 73 S.E.2d 906, 910 (1953).

It is possible that the testamentary exception will apply in this scenario and the attorney can testify freely about her communications with the deceased client. However, this is not a call the attorney should make on her own. The safest course is to put the matter before the court and obtain an order outlining the permissible scope of the lawyer’s testimony. Relying on a court order provides protection if someone later questions your conduct.

If you receive a request for your estate file, you do not have to navigate these issues on your own. Your Lawyers Mutual policy includes subpoena assistance, and we can retain experienced counsel to assist you.   

About the Author

Laura Loyek

Laura Loyek is a claims attorney with Lawyers Mutual, focusing in the areas of real estate, litigation, appellate law, and bankruptcy.  Prior to joining Lawyers Mutual in 2009, Laura practiced for six years in the areas of complex commercial litigation and land use/zoning.  Laura received her J.D. from Harvard Law School and her undergraduate degree from Wake Forest University.  She is an active member of the North Carolina Association of Women Attorneys and the Real Property Section of the North Carolina Bar Association. 

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