Does Attorney-Client Confidentiality Die With the Client?

Recently, two separate clients inquired about whether or not the duty to preserve client confidentiality survives after the death of a client.

In Swidler & Berlin v. United States (524 U.S. 399 (1998)), the Supreme Court addressed the question directly within the context of the Whitewater investigation. Vince Foster consulted with counsel regarding his involvement in the Clinton administration and the Whitewater investigation, days later he committed suicide. A grand jury issued a subpoena for his lawyers’ notes from the consultation. His lawyers refused, claiming attorney-client privilege. The court upheld the attorney’s position that the attorney-client privilege survived the death of Mr. Foster.

The court noted its reasoning, which is if the client was aware that attorney-client confidentiality could expire, it likely would negatively impact a client’s willingness to make full disclosure to counsel. Clients might rightly fear disclosure about reputation, civil liability or harm to friends and family; regardless of whether the disclosure was during their lifetimes or after. Limiting a client’s disclosure to his attorney could severely impact the attorney’s ability to properly counsel or represent that client.

Rule 1.6 of The New York Rules of Professional Conduct does not specifically reflect the rule of Swidler, as there is no specific mention of deceased clients within Rule 1.6. However, the Rule prohibits disclosure of confidential information without “informed consent” by the client. Certainly, a deceased client is not capable to give such consent. Moreover, the language of the Rule’s definition of confidential information is so broad as to include attorney work product under most circumstances.

Rule 1.6 does incorporate most of the common law exceptions to the nondisclosure rule, permitting a lawyer to reveal or use confidential information to prevent reasonably certain death or substantial bodily harm; to prevent the client from committing a crime; to withdraw an opinion by the lawyer that might be relied upon by a third person where that opinion is based on inaccurate information or used to further a crime; to secure legal advice about compliance with the Rules of Professional Conduct or other law from another lawyer; to defend the lawyer and or his employees and associates; to establish or collect a fee; and, as otherwise provided (RPC 1.6 b). Note that permitted disclosure under 1.6 b is limited to use or revelation “to the extent that the lawyer reasonably believes necessary”. Rule 1.9 c extends the confidential information protection to former clients.

Chris McDonough Esq.,
Senior Partner
McDonough & McDonough LLP
Special Counsel
Foley Griffin LLP.,
666 Old Country Road, Suite 305
Garden City, N.Y. 11530
(516) 741-1110
(516) 741-9171 (fax)

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