No Implied Authorization: Consent is Key to Discuss Intentions of Deceased Client’s Will in Colorado

The Colorado Bar Association Ethics Committee recently published an opinion finding that will-drafting attorneys cannot volunteer information about a deceased client’s intentions to their beneficiaries without the previous consent of the client or their agent. The opinion was published in response to the frequency with which will drafters receive questions about their client’s intentions from relatives who are disappointed in their bequest.

The opinion noted that a lawyer’s duty of confidentiality extends after a client’s death, as specifically reflected in Colorado Rule of Professional Conduct Rule 1.6(b) which does not  include a client’s death among the listed confidentiality. This notion of confidentiality is also upheld in The American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct.

The opinion also highlights that an attorney may reveal this information without violating Rule 1.6 if a court orders the disclosure. However, an attorney may not reveal information based upon the rationale that the client impliedly authorized the disclosure.

The committee also noted that there is currently a split of authority concerning whether a will-drafting attorney may ethically disclose information without authorization from the client or personal representative. The ultimate position adopted by the committee states that “simply retaining a lawyer to draft estate documents, without more, is not sufficient to constitute implied consent for the lawyer to voluntarily provide information protected by Rule 1.6.”

Learn about the Colorado Bar’s Ethic Opinion here and here.

Read the American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct here.

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