Estate Litigation: Drafting Lawyer’s Disclosure

Sometimes, a lawyer’s file containing notes and documents written during the testator’s will-writing process can be helpful in resolving litigation. However, lawyers aren’t always able to release this information. Lawyers have a certain degree of confidentiality they must adhere to. They owe this duty to the testator even after they have passed away. According to chapter 3 of the Code of Professional Conduct for British Columbia (CPC),

“A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”

Lawyers and Confidentiality Release

There are few circumstances where a lawyer is able or required to release information on a client from their files. Further, the CPC outlines that while a lawyer must keep strict confidence on their client’s affairs, they can release such information when:

1. Expressly or implicitly authorized by the client;
2. Required by law or a court to do so;
3. Required to deliver the information to the Law Society, or
4. Otherwise permitted by the Code.

Basically, a lawyer can only release all their information on a client if authorized by the client or the courts. People are sometimes confused, wondering why this information is confidential. However, it’s important that client information be confidential in order for a lawyer to give effective advice and clearly communicate with their clients. This ensures that lawyers understand the entire situation to the fullest possible extent and can give the best advice possible.

Client/Executor Authorization

Usually, estate litigation cases arise after the will-writer has passed. In this case, the client obviously can’t authorize the release of the information in the lawyer’s file. The executor of the will is able to authorize the release of information. Executors are appointed to administer the estate, and must act in the best interests of the beneficiaries. In order for the executor to waive confidentiality, they must sign off, agreeing for the lawyer’s file to be released. The executor has the option to allow this or not.

When the will-writer is still alive, they can allow the will drafting lawyer to release information if they choose. The executor will not be given this ability until after the testator has deceased.

Court Authorization

In some cases, the courts have to order the authorization for the lawyer to release the will drafting information. An example of when this could arise in an estate litigation case is when there is question of the validity of a will. Since the validity is in question, the executor of the will might not even be a valid executor and hence cannot authorize the release. Other cases where this can arise include when the courts believe that the release of the file is essential to a case, however, the executor is refusing to authorize the release. The courts are given the final say and can exercise this power when it appears to be necessary to resolve a case.

If you believe that the release of a drafting lawyer’s file could help with your estate litigation case, contact an experienced estate lawyer today. We can ensure that you’re properly represented and get the information you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.