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Opinion 697

Question Presented

Under the Texas Disciplinary Rules of Professional Conduct, is a lawyer permitted or required to turn over a closed litigation file of a deceased client to the executor of the decedent’s estate when the file is not related to matters affecting the estate or its administration?

Lawyer represented Client, the sole trustee of an irrevocable trust. The beneficiaries of the trust are Adult Son from Client’s first marriage and Minor Son from his second marriage. Adult Son sued Client in his individual capacity alleging breach of fiduciary duty. Lawyer represented Client in that lawsuit, which settled after a year of litigation.

Client died two years after the settlement. Client’s Widow and Adult Son become co-trustees of the trust. A new dispute has now arisen between Widow and Adult Son regarding the validity and terms of the settlement agreement. The new dispute may affect the trust distributions and the respective powers of the trustees. Lawyer is not representing any party to the new dispute.

Client’s Widow is the executor of Client’s estate. In her capacity as executor, Widow requests Lawyer’s file from the original trust litigation with Adult Son. The file includes confidential attorney-client communications and work product relating to the original trust dispute and its settlement. The file does not include intrinsically valuable documents (such as deeds or negotiable instruments).

The parties do not dispute the deceased Client’s will or the administration of the Client’s estate. Lawyer’s representation did not concern the will or any personal assets of the Client, and none of the confidential information in Lawyer’s possession is pertinent to the Client’s will or estate. The dispute regarding the settlement agreement does not involve a claim for relief by or against the Client’s estate.

During his life, Client neither authorized Lawyer to disclose confidential information to his wife nor forbid such disclosure.

Bluebook Citation

Tex. Comm. On Professional Ethics, Op. 697 (2023)