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In some estate litigation cases, a lawyer’s file containing notes and documents written during the testator’s will-writing process can be helpful in resolving a case, however, lawyers aren’t always able to release this information. Lawyers have a certain degree of confidentiality they must adhere to, a duty owed 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.”
There are few circumstances where a lawyer is able to, or required to, release information on a client from their files. Further, the CPC outlines that while a lawyer must keep strict confidence on all information concerning the affairs of their client, they are only able to release such information when:
Basically, a lawyer can only release all their information on a client to the courtroom if authorized by the client or by the courts. People are sometimes confused, wondering why this information is confidential. However, it is highly important that client information be confidential in order for a lawyer to give effective advice and clearly communicate with their clients. In order to serve their client effectively, the client must feel secure that they can tell their lawyer almost anything in strict confidentiality. This ensures that lawyers understand the entire situation to the fullest possible extent and can give the best advice possible.
Usually, estate litigation cases arise after the will-writer has passed. In this case, the client obviously can’t expressly authorize the release of the information in the lawyer’s file, so the executor of the will is given this ability. This is because an executor is someone who was appointed by the testator to handle the administration of the estate, and as such is expected to act in the best interests of the beneficiaries, executing the will as the testator had intended. In order for the executor to waive confidentiality, the executor of the will 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 are authorized to allow the will drafting lawyer to release the information if they choose so. The executor will not be given this ability until after the testator has deceased.
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.