The "Testamentary Exception" - Potential Ethical Quicksand

I recently had occasion to revisit the testamentary exception in Colorado and the sometimes subtle differences between the attorney-client privilege, waiver, exception, and the Colorado Rules of Professional Conduct regarding confidential information.

The circumstances were routine: years ago an attorney had drafted a will.  The testatrix was now deceased and a squabble had broken out among the heirs.  The heirs’ attorneys had agreed to conduct informal discovery regarding a pretermitted child and contacted the lawyer to ask that he provide access to his estate planning file.  They also asked him to consent to an informal interview regarding the circumstances surrounding the making and execution of the will, including the testatrix’s state of mind.  The lawyer’s file had years earlier been transferred to other counsel.  

Although I had not had given any thought to the testamentary exception since taking Gene Scoles’ Trust and Estates class at the University of Oregon nearly 30 years earlier, the analysis was straight forward:

It begins with an understanding of the attorney-client privilege.  In Colorado the privilege is statutory – one of a few exceptions to the general rule that everyone may be compelled to give evidence.  The privilege is held by the client, not by counsel; it is the client’s and the client’s alone to waive.  If called to testify the subpoenaed attorney’s duty is clear: invoke the privilege (assuming none of the litigants does) until ordered to testify by the court.

It is well settled that the privilege survives the death of the client.  This rule was not established, but driven home by Chief Justice Rehnquist’s opinion in Swidler & Berlin v. U.S., 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998).  That case, you may recall, arose out of the 1993 suicide of Vince Foster, a Deputy White House counsel in the early days of the Clinton White House, and a former partner of Hilary Clinton in the Rose Law Firm.  Swept up in what came to be known as the White House Travel Office scandal, days before his death Foster sought the counsel of Swidler & Berlin partner, James Hamilton, whom he sought to retrain to represent him in any congressional inquiry which might arise out of the travel office firings.   Nine days after meeting with Hamilton, Foster committed suicide.  Independent Counsel, Ken Starr, later subpoenaed notes taken by Hamilton regarding this conversation, which Hamilton had assured Foster would be treated as confidential.

With Justices O’Connor, Scalia and Thomas dissenting, Chief Justice Rehnquist’s majority observed that most commentators and courts have held that the attorney-client privilege survives the death of the client, and held that the same rule obtains under Fed. R. Evid. 501.  The court discussed the so-called, testamentary exception: 

Such testamentary exception cases consistently presume the privilege survives . . .  They view testamentary disclosure of communications as an exception to the privilege: “[T]he general rule with respect to confidential communications … is that such communications are privileged during the testator’s lifetime and, also, after the testator’s death unless sought to be disclosed in litigation between the testator’s heirs.” [United States v. Osborn, 561 F.2d 1334 (CA9 1977)] at 1340. The rationale for such disclosure is that it furthers the client’s intent. Id., at 1340, n. 11.

The Court further reflected that:

About half the States have codified the testamentary exception by providing that a personal representative of the deceased can waive the privilege when heirs or devisees claim through the deceased client (as opposed to parties claiming against the estate, for whom the privilege is not waived). See, e.g., Ala. Rule Evid. 502 (1996); Ark. Code Ann. §16—41—101, Rule 502 (Supp. 1997); Neb. Rev. Stat. §27 503, Rule 503 (1995). These statutes do not address expressly the continuation of the privilege outside the context of testamentary disputes, although many allow the attorney to assert the privilege on behalf of the client apparently without temporal limit. See, e.g., Ark. Code Ann. §16—41—101, Rule 502(c) (Supp. 1997). They thus do not refute or affirm the general presumption in the case law that the privilege survives.

In Colorado, the leading case on the testamentary exception is Wesp v. Everson, 33 P.3d 191, 200 (Colo. 2001).  Like Swidler & Berlin, Wesp arose from a suicide shrouded in scandal:

Plaintiff Heather Wesp . . . sought damages in tort against her mother and step-father, Cheryl and Frank Brewer, based on allegations that Frank Brewer had sexually abused her. Criminal charges were also filed based on the same allegations. After writing suicide letters to family and friends, both Brewers committed suicide.

Citing Swidler & Berlin with approval, the Colorado Supreme Court first confirmed that privileged communications between Frank Brewer and his attorneys remain privileged after death.  The court then turned to the question of whether the testamentary exception to the privilege applied:

The testamentary exception permits an attorney to reveal certain types of communications in special circumstances. Specifically, the attorney who drafted the will of a deceased client may disclose attorney-client communications concerning the will and transactions leading to its execution in a suit between the testator’s heirs, devisees, or other parties who claim by succession from the testator. McCormick, supra, § 94; Wigmore, supra, § 2314; 81 Am. Jur. 2d, Witnesses § 389 (2000). The rationale for this exception is that it furthers the client’s testamentary intent. Swidler, 524 U.S. at 405 (citing Glover v. Patten, 165 U.S. 394, 407-408 (1897)); Wigmore, supra, § 2314.

Colorado recognizes the testamentary exception. See Denver Nat’l Bank v. McLagan, 133 Colo. 487, 491, 298 P.2d 386, 388 (1956); In re Estate of Shapter, 35 Colo. 578, 587, 85 P. 688, 691 (1905).

(Emphasis added.)  The court held, however, that although Colorado recognizes the testamentary exception, the exception did not apply in the case before it.

With regard to the oft-proffered rationale that the testamentary exception “furthers the client’s testamentary intent,” in reality many, if not most, clients would be horror-stricken if they knew their confidential consultations with counsel during the making of their will could be aired in open court after their demise.  Like so many rules based on “testamentary intent,” the rationale for the testamentary exception is a legal fiction, and has not been adopted by every state.  More significant to Colorado attorneys, the testamentary exception has not been adopted by the Colorado legislature – it is nowhere to be found in the Colo. Rev. Stat. § 13-90-107(1)(b), the codification of the attorney-client privilege which, in Colorado, is purely a creature of statute.  As such, a Colorado attorney confronted with a request has one, absolutely clear duty: assert the privilege until ordered to do otherwise by a competent tribunal.

This duty is buttressed by the Colo. RPC 1.6(a), which compels an attorney to “not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”  (Emphasis added.)  Rule 1.6(a) is, at once, the most important rule in the ethical canons, and the least understood.  It is substantially broader than the attorney-client privilege, which is limited in scope to confidential communications.  Like the attorney-client privilege, the duty to preserve client confidences under Rule 1.6(a) survives the client’s death.

It is, of course, possible for an attorney to reasonably believe that a particular client has “impliedly authorized” posthumous disclosure to “further the client’s testamentary intent,” an express exclusion from Rule 1.6(a).  The better practice, however, is to discuss with, and seek the client’s informed consent, to make any such disclosures at the time a will is made.  The client’s informed consent —which should properly be conditioned on the need for such disclosure — would be sufficient to both satisfy Rule 1.6(a) and waive the statutory privilege.  Absent such consent, however, neither the “impliedly authorized” exclusion of Rule 1.6(a), nor any of the express exceptions in Rule 1.6(b), authorize an attorney to waive the statutory attorney-client privilege.

There is disagreement as to whether the attorney-client privilege devolves to the testatrix’s estate, such that it can be waived by a personal representative.  For example, there is authority in Massachusetts that a personal representative appointed by the probate court may waive the privilege.  See generally, Geller & Weisberg, Death and Confidentiality.  See also  Swidler & Berlin (noting that about half the states have codified the testamentary exception).  

Other states, such as Hawaii, have held that even if a personal representative has legal authority to waive the attorney-client privilege, the duty of confidentiality under Rule 1.6 is broader and prohibits disclosure unless the attorney reasonably concludes that client would have authorized the consent.   See Hawaii Formal Op. 38 (1999; updated 2015).  A similar conclusion was reached by the D.C. Bar in its Opinion324 (2004).  Iowa takes the position that an attorney should disclose written and verbal communications regarding a deceased client’s will only upon court order.  See Iowa Eth. Op. 98-11 (1998); Iowa Eth. Op.91-25 (1991).  Accord Phil. Bar Op. 91-4 (March 1994) (leaving open the question of “whether a court of competent jurisdiction may order [an attorney] to produce the earlier Will, or whether applicable substantive law would allow the personal representative to waive the attorney client privilege”).  

More recently, the Eighth Circuit held that, under federal law, a “personal representative of a deceased client generally may waive the client’s attorney-client privilege, however, only when the waiver is in the interest of the client’s estate and would not damage the client’s reputation.”  United States v. Yielding, No. 10-1117, 2011 WL 4578434 (8th Cir. Oct. 5, 2011).  See generally Commentary on Model Rule of Professional Conduct 1.6 by the American College of Trust and Estate Counsel (ACTEC) (collecting cases and ethics opinions).  

Where does all this leave a Colorado attorney for a deceased client?  Currently, in legal and ethical quicksand.  Colorado’s statutory attorney-client privilege contains no exclusion or exception for the testamentary privilege, although the Colorado Supreme Court has recognized one.  Thus, unless the client gives informed consent while alive — which would both waive the privilege and provide an exclusion from Rule 1.6(a) — a Colorado attorney is bound to assert the privilege until ordered by a court to do otherwise.  Even assuming a personal representative in Colorado may inherit the privilege for purposes of asserting or waiving it, Rule 1.6(a) may prohibit an attorney from disclosing any information relating to the making of a will, absent a court order.  The bottom line is that, although Colorado recognizes the testamentary exception, it is not self-executing – disclosure may only be made when ordered by a court.

In the case of the attorney whose inquiry started my review of the testamentary privilege, the attorneys for the dueling heirs sought and obtained an order from the court directing attorneys who had provided estate planning advice to the decedent to make their files available, and authorizing them to disclose otherwise privileged communications made in connection with the creation or execution of the will.  Where the client has not given clear direction during her life, this is an expedient solution and, absent a change in Colorado law, the only safe harbor for a Colorado attorney confronted with such a request.  It keeps the testifying attorney out of the ethical quicksand, assures a level playing field is maintained among the will contestants, and does not usurp the roll of the court which alone is empowered to rule on matters of privilege.

Addendum: Five years after this blog was posted the Colorado Bar Association's Ethics Committee issued Op. 132, Duties of Confidentiality of Will Drafter Upon Death of Testator (Sept. 26, 2017).  Opinion 132 was updated in June 2021 following the the decision in In re Estate of Rabin, 2020 CO 77 (Nov. 2, 2020).  It now concludes:

In conclusion, a lawyer may ethically provide Protected Information relating to a deceased client’s testamentary wishes only to the extent necessary to carry out those wishes where: (a) the decedent has expressly or impliedly authorized disclosure; (b) the disclosure is to the personal representative and necessary to settle the estate; or (c) a court orders the disclosure.  If none of those circumstances exist and no other exception in RPC 1.6 applies, no such disclosure may be made to third parties, including the personal representative, beneficiaries under the will or other documents, or any other party.