Wisconsin Lawyers Mutual Insurance Co. (WILMIC) has seen a significant increase in estate planning claims against policyholders in recent years. Estate planning is perennially in the top five claims-producing practice areas, making up approximately 14% of all claims against policyholders from 2010 to 2020. In 2021, WILMIC experienced a dramatic jump in claims in this area – estate planning had nearly double the number of claims (25% of the total) as the next highest category in frequency, although the severity of these claims (the amount of money to defend or settle the claim) remained relatively low. This trend has continued in 2022. The reasons for the increase are many: evolving family structures, increased life spans, disenfranchised beneficiaries, and others.

It is no surprise that WILMIC’s claims attorneys have fielded questions from policyholders, many along the lines of the following: “My client or client’s child or interested party has requested the client’s file. What do I have to give them?” Responding to requests – or even subpoenas – can be difficult and should include a careful evaluation of attorney-client privilege and confidentiality issues.

Whose File Is It?

The file belongs to the client, not to the lawyer. The lawyer must return property to the client upon termination of the representation. Lawyers jeopardize their licenses if they don’t give files to clients who request them.¹

What Is Included in the “File”?

The ethics rule governing this issue is SCR 20:1.16(d), which states:

“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as … surrendering papers and property to which the client is entitled…. The lawyer may retain papers relating to the client to the extent permitted by other law.”

The rule does not use the word “file,” and the meaning of the phrase “papers and property to which the client is entitled” is not clear. The State Bar of Wisconsin Professional Ethics Committee issued Formal Ethics Opinion EF-16-03 to clarify this rule.²

In an article in InsideTrack,³ Joe Forward analyzed opinion EF-16-03 and described what must be included in response to a client’s request for a file and what can be withheld. Forward bluntly answered the question whether a lawyer can withhold a file until the client pays the attorney, flatly stating, “Can’t do it.” Other questions answered in that article about the opinion include the following:

• Can the file be returned in electronic format? Yes, if the lawyer stores the file electronically, it can be provided electronically. A lawyer might have to provide paper copies if the client lacks technological expertise or funds to access digitized images.

• What if the client received all materials during representation? It doesn’t matter – the lawyer must give the client the whole file.

• Can a lawyer charge a copy fee? No. The file is the client’s; the copies are the lawyer’s, so the lawyer pays for them.

• Is authorization required if the request comes from successor counsel? There is no requirement for an authorization, and delays caused by taking time to get an authorization might be detrimental to the client. But, if the client previously instructed the lawyer not to disclose, that instruction must be followed.

File Requests Related to Estate, Trust, and Probate Clients

The following are two scenarios that WILMIC has recently encountered regarding WILMIC policyholders’ estate planning practices.

Scenario 1: The son of a client calls to inform the client’s lawyer that the client has recently passed away. The son would like to pick up the client’s file as soon as possible to settle some disputes that have arisen since the client’s death. The son is calling from the car on his way to the lawyer’s office for that purpose.

Attorney-client privilege. It is well-settled law that the attorney-client privilege survives the death of the client. The duty of an attorney to a client to preserve secrets and confidences does not end with the client’s death but continues indefinitely, unless disclosure is consented to or is ordered by the court or the attorney-client privilege is waived.⁴

Confidentiality. Wisconsin SCR 20:1.6 describes which information is confidential and must remain so:

“(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) [to prevent crime or fraud] and (c).”

According to Wisconsin Formal Ethics Opinion EF-17-02, “The ethical duty of confidentiality protects all information relating to the representation of the client, whatever its source, including the identity of the client. SCR 20:1.6 prohibits the disclosure of a client’s identity unless the client gives informed consent to the disclosure, the disclosure is impliedly authorized in order to carry out representation, or the disclosure falls within certain stated exceptions.”⁵ The exceptions include securing ethics advice, defending against a claim, complying with a court order, and resolving conflicts of interest.

Discussion. In the above set of facts, the attorney does not know enough to be able to determine whether privileged or confidential information can be disclosed. It is important to keep in mind that the children or other beneficiaries of the deceased are not the lawyer’s clients and they are not entitled to receive confidential information.

However, if the son has properly established himself as the personal representative of the estate, the lawyer can disclose confidential information to him if the disclosure is consistent with the goals of the original representation and follows the express instructions given by the client. The basis for this rule is that the client has impliedly authorized the lawyer to divulge confidential information to the personal representative “to carry out the representation.”⁶ In other words, the personal representative needs to know what is necessary to effectuate the deceased client’s estate plan.

Scenario 2: The attorney of a deceased client is served with a subpoena to produce the client’s file and to testify as a witness in a dispute in the probate action contesting the validity of the will.

Attorney-client privilege. A personal representative can consent to the waiver of the attorney-client privilege between a lawyer and the client. If the court rules that an attorney must disclose privileged information, then the attorney is not in violation of the Rules of Professional Conduct.⁷

Confidentiality. As previously mentioned, one of the exceptions to SCR 20:1.6 is a disclosure to comply with a law or a court order. Compliance with a subpoena is required by law, and therefore, a lawyer can reveal confidential, but not privileged, information.

Discussion. One of the first things the lawyer should do is contact the personal representative to determine whether and to what extent the personal representative consents to the disclosure. After a client has died, the attorney-client privilege is the personal representative’s to assert or waive, and the personal representative’s position should be made clear to the attorney. If the personal representative waives the privilege and the attorney continues to refuse to disclose the information (for example, on the basis that the information is work product, or the request is overly burdensome or to preserve the reputation of the deceased client) and the court orders the attorney to disclose privileged information, then the attorney has “perform[ed] [the attorney’s] full duty to the court and to client….”⁸

Ultimately, if a court determines that disclosure will further the interest of the estate, then the court likely will require that the information be disclosed. If the attorney has any questions or objections to the disclosure, the proper course of action appears to be to seek a court order. Such a course of action will protect the attorney and avoid any violations of the Rules of Professional Conduct.

Conclusion

The issues surrounding requests to attorneys for clients’ estate planning files can be thorny and involve ethical and evidentiary rules. These situations can become confusing very quickly. WILMIC’s and most insurance carriers’ policies contain benefits that include subpoena assistance. Contacting your malpractice carrier can only help, both to satisfy reporting requirements and to take advantage of these other benefits to hire experienced counsel to assist you in developing a response.

Endnotes

1 See Disciplinary Proc. Against Goluba, 2013 WI 32, 347 Wis. 2d 1, 829 N.W.2d 161 (failing to return client’s original title documents); Disciplinary Proc. Against Loew, 2010 WI 23, 323 Wis. 2d 670, 780 N.W.2d 523 (failing to return client’s original documents); Disciplinary Proc. Against Smead, 2010 WI 4, 322 Wis. 2d 100, 777 N.W.2d 644 (failing to return papers and property belonging to clients).

2 Wis. Formal Ethics Op. EF-16-03 (clarifying SCR 20:1.16(d)). Ethics opinions are available at www.wisbar.org/ethop.

3 Joe Forward, Letting Go: New Ethics Opinion Clarifies Rule on Surrendering the Client File, InsideTrack(Jan. 18, 2017).

4 SCR 20.21(6); SCR 20.22; ABA Informal Op. 1293. Swidler & Berlin v. United States, 524 U.S. 399 (1998).

5 Wis. Formal Ethics Op. EF-17-02 (April 4, 2017).

6 SCR 20:1.2(a).

7 Wis. Formal Ethics Op. E-77-5 (citing Wis. Stat. §§ 905.03(3), 905.11).

8 American Surety Co. v. Hoehl (In re Hoehl’s Est.), 181 Wis. 190, 197, 193 N.W. 514 (1923).

» Cite this article: 95 Wis. Law. 43-45 (December 2022).