Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, October 13, 2020

Legal-Ease: Attorney-client privilege after a client dies

PrivilegeAs an attorney, especially one who specializes in elder law and estate planning, you will have to deal with the death of clients. Although it may be easy for you to handle estate administration following the death of your client, if you are close to them or consider them friends, the grieving process will not be easy. 

One thing that fosters a successful attorney–client relationship is trust and honesty within conversations, especially ones related to the representation. This is true because an attorney cannot fully represent you if detail are left out or if you are dishonest. The same is true for attorneys, who should be honest and truthful as well.

Lee R. Schroeder stated, "the more relevant information that clients provide attorneys, the better the attorney will be positioned to help the client. To foster that candor and honesty, the ethics rules for attorneys include the well-known doctrine of attorney-client privilege."

Attorney–client privilege requires attorneys to keep confidential information to themselves. "In other words, attorneys cannot share secrets from the clients, and attorneys cannot gossip about their clients’ sensitive matters that the attorney hears from someone other than the client." 

This privilege is designed to protect your clients and their lives. Certain secrets and information may be difficult to keep to yourself, but this is what attorneys are called on to do. This privilege remains even after the death of a client, with a few exceptions of course. 

These exceptions include, "Attorneys can share that now-deceased clients were competent to sign documents. And, an executor of a deceased client’s estate or a spouse of a deceased client can waive the privilege. However, as might be expected, if the client’s secret is a secret about the executor or spouse, the attorney cannot share the secret in order to allow the executor or spouse to waive the privilege."

See Lee r. Schroeder, Legal-Ease: Attorney-client privilege after a client dies, Lima News, October 3, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.


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