Formal Opinion 175
(1982)
The Confidentiality of Attorney-Client Communications Continues After the Client’s Death

Issues

Recently there have been several inquiries concerning attorney-client confidential communications. Specifically, these inquiries involve the following issues:

(1) Does the confidentiality of attorney-client communication survive the death of the client?

(2) If confidentiality survives, who, if anyone, has authority to waive that confidentiality?

(3) Under what circumstances other than waiver may the attorney testify concerning confidential communications?

Discussion

Any discussion of these issues must begin by pointing out that the attorney-client privilege regarding testimony is contained in RCW 5.60.060(2): "An attorney or counselor shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment."

Canon 4 of the Code of Professional Responsibility provides: "A Lawyer Should Preserve the Confidences and Secrets of a Client."

Disciplinary Rule 4-101 amplifies Canon 4 and provides, in part, as follows:

"(A) ‘Confidence’ refers to information protected by the attorney-client privilege under applicable law, and ‘secret’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

"(B) Except when permitted under DR 4-101(C) and (D), a lawyer shall not knowingly during or after termination of a professional relationship to his client:

"(1) Reveal a confidence or secret of his client.

"(C) A lawyer may reveal:

"(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

"(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order."

Nothing in the Code of Professional Responsibility or in Washington evidentiary law indicates an end to the attorney-client confidential relationship based upon the death of the client. DR 4-101(B) prohibits a lawyer, during or after termination of the professional relationship, from revealing client confidences or secrets. The American Bar Association Committee on Ethics and Professional Responsibility has ruled that an attorney’s duty to preserve confidences and secrets continues after the client’s death. ABA Formal Opinion 91; Informal Opinion 1293, June 17, 1974.

Washington cases have uniformly held that the attorney-client privilege continues after the death of the client to whom the privilege is extended. Martin v. Shaen, 22 Wn.2d 505, 156 P.2d 681(1945); see also In re Thomas’ Estate, 165 Wash. 42, 4 P.2d 837(1931).

The privilege is personal to the client and may generally be waived only by the client. Where the client is deceased, however, the cases recognize the authority of the client’s personal representative or heirs to waive the privilege. Martin v. Shaen, supra, at 511; In re Thomas’ Estate, supra, at 54-55. Where the matter in controversy is between or among the heirs and personal representatives of the deceased client, each of whom is claiming as a successor to the deceased client, the privilege is generally unavailable to any of them. 165 Wash. at 54; ABA Formal Opinion No. 91. The cases recognizing the right of waiver refer to a limitation on the right of waiver where the disclosure would injuriously affect the character or reputation of the deceased client. 22 Wn.2d at 511. No Washington case has been found in which that limitation was held to apply.

The Disciplinary Rules, statutes, and case law do not appear to provide authority for an attorney to unilaterally waive the attorney-client privilege or decide to reveal secrets whether the client is living or deceased. All authority regarding waiver of the privilege refers to the consent of the client, not the independent judgment of the attorney. Indeed, Ethical Consideration 4-4 confirms the attorney’s "obligation to advise the client of the attorney-client privilege and timely to assert the privilege [on behalf of his client] unless it is waived by the client." While the Ethical Considerations are not binding, they embody the guiding principles to which practicing attorneys should aspire. Therefore, it is the position of the Association that an attorney should never unilaterally determine that a waiver of the attorney-client privilege is in order. For the same reasons an attorney may not unilaterally decide to reveal a client’s secrets.

Washington case law recognizes exceptions to the attorney-client privilege when, on balance, the interests of justice override the purposes of the privilege- the free flow of information between attorney and client, permitting effective representation. Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490 (1968). Further, situations occasionally arise in which the privilege is vigorously asserted by the client and found by the court to have been waived or not to apply. See, e.g., Kammerer v. Western Gear Corp., 27 Wn. App. 512, 618 P.2d 1330 (1980).

An attorney’s ethical duty was once construed to require an attorney to withhold privileged communications even in the face of a court order to the contrary. Some attorneys elected to face contempt charges rather than violate the Disciplinary Rules as they understood them to be applied. This single-minded devotion to the privilege is no longer required by the Rules, since DR 4-101(C)(2) permits the lawyer to reveal confidences when "required by law or court order."

When in doubt as to the existence or applicability of the privilege, the attorney may offer the testimony to the court in camera and request a ruling from the court. Refusal to testify after being ordered to do so by a court of competent jurisdiction, with the attendant contempt penalties, would now be justified only in the most extreme of cases, perhaps those involving abuse of judicial authority.

Conclusions

(1) The attorney-client confidential relationship survives the death of the client. Therefore, an attorney’s statutory and ethical duties also survive. The privilege may be invoked by the client’s personal representatives and heirs.

(2) The attorney should never unilaterally determine that waiver of the privilege is in order. The attorney should never unilaterally decide to reveal a client’s secrets. The privilege may be waived by the deceased client’s personal representatives or heirs, except perhaps in cases where the client’s character or reputation will be damaged.

(3) An attorney may testify concerning confidential communications after being ordered to do so by a court of competent jurisdiction...

[See RPC Terminology; 1.6]