FACTS[1]
The inquiring attorney asks about her duty to maintain client confidences under ER 1.6 in light of certain mandatory reporting provisions of A.R.S. § 46-451, et. seq., commonly known as Arizona's Elder Abuse Statute.
The Statute protects incapacitated or vulnerable adults from "abuse," "exploitation," or "neglect." See A.R.S. § 46-451 (defining those terms); see generally In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 945 P.2d 1283 (1997) (discussing history and purpose of Elder Abuse Statute). Among other things, the Elder Abuse Statute criminalizes neglect or financial exploitation of an incapacitated or vulnerable adult. See A.R.S. § 46-455(A) (neglect); A.R.S. § 46-456(B) (financial exploitation).
The inquiring attorney's question involves Section 46-454 of the Elder Abuse Statute, which imposes on "[a]n attorney . . . who has responsibility for preparing the tax records of an incapacitated or vulnerable adult" or any person "who has responsibility for any other action concerning the use or preservation of the incapacitated or vulnerable adult's property" a duty to report to governmental authorities suspected abuse, neglect or exploitation of the incapacitated or vulnerable adult.[2]
The inquiring attorney anticipates situations in which she acquires, while representing an incapacitated or vulnerable adult, or a person who owes fiduciary duties to an incapacitated or vulnerable adult, such as a trustee, guardian or conservator, information that gives rise to a reporting obligation under Section 46-454, but which she has not been authorized to disclose, either because the client does not want her to do so or because the client is incapacitated. For example, the inquiring attorney might learn, while representing an incapacitated or vulnerable adult, that a member of the client's family has abused, neglected or exploited the client, or, while representing a trustee, guardian or conservator, that her client has exploited an incapacitated or vulnerable adult's property.
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
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(c) A lawyer may limit the objectives of the representation if the client consents after consultation.
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
ER 1.6 imposes on an attorney an obligation to maintain the confidentiality of all "information relating to representation of a client", which includes not only information communicated in confidence by the client, but also information coming from any source. See ER 1.6 Comment.
There are limited exceptions to this Rule. Some are found in the text of ER 1.6 or in other provisions of the Model Rules of Professional Conduct. Others have been recognized when a statute or court order requires an attorney to disclose confidential information. See Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 1.6:204 at 168.44 (2d ed. 1991) ("'[O]ther' law may impose 'forced' exceptions without regard to the text of Rule 1.6").
This Committee has previously concluded that a lawyer's obligation to maintain client confidences under ER 1.6 may yield to a statute requiring the disclosure of that information. See Ariz. Op. 87-3.
In Ariz. Op. 87-3, the Committee considered whether an attorney could, consistent with his ethical obligations under ER 1.6, comply with a federal statute that required the reporting of certain cash transactions to the Internal Revenue Service. The Opinion relied heavily on previous opinions interpreting DR 4-101, which expressly allowed a lawyer to disclose client confidences when "required by law or court order." Ariz. Op. 87-3 at 2. While ER 1.6 does not contain a comparable provision, the Opinion looked to the Preamble to the Model Rules and to the Comment to ER 1.6, which both suggest that "other law" may create an exception to the duty of confidentiality. The Preamble states, in part, "[a] lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. (Emphasis added.)
The Comment to ER 1.6 states, in part,
A lawyer may not disclose [confidential] information except as authorized or required by the Rules of Professional Conduct or other law. (Emphasis added.)
The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. . . . In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supercedes ER 1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession. (Emphasis added.)[3]
Based on these provisions, the Opinion concluded that, under ER 1.6, "[a]n exception to the general rule prohibiting disclosure by an attorney of confidential information exists where disclosure is required by law. In such situations, the attorney may, within bounds of ethical propriety, reveal the sought-after information."
Ariz. Op. 87-3 at 4.
We reach a similar conclusion here. If the inquiring attorney concludes, based on information acquired during the course of representing an incapacitated or vulnerable adult, or a person who owes fiduciary duties to an incapacitated or vulnerable adult, that she is required to make a report under A.R.S. § 46-454, the Ethical Rules do not prohibit her from disclosing information to state authorities.[4] The extent to which the inquiring attorney is required to make such a report, and whether other provisions of law, such as the attorney-client privilege, preclude her from doing so, are questions of law beyond the scope of this Committee's jurisdiction.
The inquiring attorney is not, however, ethically obligated to make such a report. As the Committee recognized in Ariz. Op. 87-3, divulging confidential information when disclosure is "required by law" is permissive, rather than mandatory, and there may be other legal considerations that lead the attorney to conclude that he may not divulge that information. Ariz. Op. 87-3 at 3. Ethical Rule 1.14, which permits a lawyer to take protective actions for a client who cannot act in his or her own interest, also may provide an ethical basis for reporting.
If the inquiring attorney decides to report under Section 46-454, she should inform her client. See ER 1.4; Ariz. Op. 87-3 at 4.
The inquiring attorney should also disclose, at the outset of her representation of an incapacitated or vulnerable adult or a person who owes fiduciary duties to an incapacitated or vulnerable adult, that circumstances may develop during the course of the representation that would require the inquiring attorney to make a report under Section 46-454 regardless of the client's wishes. See ER 1.2(a) and (c).
[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. Ó State Bar of Arizona 2001
[2] Section 46-454 states, in part,
B. An attorney . . . who has responsibility for preparing the tax records of an incapacitated or vulnerable adult or a person who has responsibility for any other action concerning the use or preservation of the incapacitated or vulnerable adult's property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that exploitation of the adult's property has occurred or that abuse or neglect of the adult has occurred shall immediately report or cause reports to be made of such reasonable basis to a peace officer, to a protective services worker or to the public fiduciary of the county in which the incapacitated or vulnerable adult resides. . . . All of the above reports shall be made immediately in person or by telephone and shall be followed by a written report mailed or delivered within forty-eight hours or on the next working day if the forty-eight hours expire on a weekend or holiday.
J. A person who violates any provision of this section is guilty of a class 1 misdemeanor.
[3] The Comments to the Rules of Professional Conduct are considered part of Arizona law. Towne Dev. Chandler v. Superior Ct., 173 Ariz. 364, 842 P.2d 1377 (App. 1992).
[4] In the somewhat analogous context of mandatory child abuse reporting statutes, ethics committees in other jurisdictions have concluded that an attorney may ethically disclose confidential information when disclosure is required by statute. See, e.g., Utah Ethics Advisory Op. 95-06 (July 28, 1995) (attorney may, under ER 1.6 and in compliance with statutory child abuse reporting obligations, disclose information leading attorney to believe that a person who is not the client has subjected a child to abuse, even if client objects); N.Y. City Ass'n of Bar Comm. on Professional & Judicial Ethics Op. 1997-2 (March 1997) (lawyer employed by social services agency may disclose without minor child's consent confidential information if required by state child abuse reporting statute); N.C. State Bar Eth. Op. RPC 175 (January 13, 1995) (attorney may comply with child abuse reporting statute by disclosing confidential information, but is not required to do so).