On September 26, 2017, the Colorado Bar Association Ethics Committee adopted Formal Opinion 132, Duties of Confidentiality of Will Drafter Upon Death of Testator.
This Opinion outlines the limited circumstances under which a lawyer who drafted testamentary instruments for a client (“drafting lawyer”) can reveal client information following the client’s death. As a preliminary matter, the Opinion notes that confidentiality does not end on a client’s death, and so lawyers must continue to observe the duty of confidentiality after the death of a client. C.R.P.C. 1.6, 1.9(c)(2).
There are four situations where a drafting lawyer may reveal information about a client’s intentions or instruments following death.
First, the client may have authorized the drafting lawyer to make such disclosures.
Second, the Personal Representative of the deceased client’s estate may authorize the drafting lawyer to make such disclosures. The Personal Representative “holds the rights to the client information.” Colorado Bar Association, Opinion 132. In that case, the “disclosure should be no broader than necessary to carry out the decedent’s wishes.” Id.
Third, a court can order the drafting lawyer to disclose such information. Colorado Rule of Professional Conduct 1.6(b)(8) allows a lawyer to reveal confidential information in order to comply with an order of the court.
Finally, the drafting lawyer may reveal client information if any of the other exceptions listed in Rule 1.6(b) are applicable, such as the crime-fraud exception.
Unless one or more of the four situations outlined above applies, “simply retaining a lawyer to draft estate documents without more, is not sufficient to constitute implied consent for a lawyer to voluntarily provide information protected by Rule 1.6.” Id.