In Ohio, who can waive the attorney-client privilege of a deceased client?

The attorney-client privilege is designed to protect the confidentiality of communications between an attorney and their client, even after the client's death. In Ohio, the decedent's spouse has the authority to waive this privilege, specifically when it pertains to matters that were confidential between the deceased and their attorney. This is based on the understanding that the spouse may have an interest in the estate or the matters that the deceased discussed with the attorney.

The rationale for allowing only the spouse to waive the privilege stems from the close legal and emotional relationship they share, as well as the need to protect the interests of the surviving spouse in matters involving the retired attorney-client relationship.

While other family members may have some interest in the affairs of the deceased, they do not generally possess the legal authority to unilaterally waive the attorney-client privilege. The estate representative, while responsible for managing the estate, typically acts per the instructions of the will or under the guidance of state law regarding fiduciary duties. Meanwhile, the decedent's attorney does not have the power to waive the privilege, as their role is to protect the confidentiality of communications rather than to act independently in this context. This delineation helps to maintain the integrity of the attorney-client relationship even posthumously.