One of the worst parts of an attorney’s job is to handle the death of a client. We attorneys can easily handle the estate administration process. The issue is that most attorneys get to know their clients very well, especially when advising clients on estate planning and business succession. In fact, I consider most of my clients to be friends of mine. As a result, attorneys can grieve just like anyone else does on the loss of someone important.
Attorneys provide the best advice when clients are completely honest and upfront with their attorneys. Sometimes, there are some things that attorneys do not necessarily need to know. For example, I do not mind some chit chat with clients, but I generally do not need to know the details surrounding the knee surgery that a client’s neighbor had last week.
Nevertheless, 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 that attorneys keep confidential and refrain from sharing all secrets and other confidences of clients. This includes sensitive matters about clients about which the attorney is told by someone other than a client. 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.
Although I am used to living a very transparent life that has few secrets, I join almost everyone else in admitting that there are certain aspects of all of our lives about which each of us is not necessarily proud. Attorney-client privilege is designed to protect all aspects of all of those parts of our lives.
Sometimes even client identities are such that they have to be kept confidential. For instance, if I have a client who wants to make a confidential bid on some real estate or wants to remain confidential after winning the lottery, their identity is as confidential as anything that the client tells me verbally.
Attorney-client privilege applies to every attorney’s staff, too. Therefore, something shared with an attorney’s legal assistant is as confidential as something told directly to the attorney.
To strengthen the privilege even more, that the attorney-client privilege survives the client’s death. So, when a client dies, the attorney may grieve, but the attorney also must remember that the secrets that the attorney knows about the client will likely never be shared.
There are a few, tiny exceptions to this rule of the attorney-client privilege surviving a client’s death. 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.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.