90-12: Confidentiality of Information; Conflict of Interest; Client Under Disability

10/1990

Ethical obligations of attorney determine whether client has the capacity to act adequately in her own interest. In so doing attorney may disclose confidential information to diagnostician; no conflict with two other clients of attorney's firm who may have manipulated client for their personal benefit.

FACTS

The inquiring attorney represents client A in the defense of a personal injury matter involving some real property that client A owns. She was referred to the inquiring attorney by another client of the inquiring attorney's law firm (client B), who remained present during client A's consultation with the inquiring attorney.

Client A is an elderly woman and the inquiring attorney believes, based on his conversations with her, that she could be easily manipulated. This impression gained strength when (1) client B returned to the inquiring attorney's office after the consultation and informed him that client A owned a lot of property and had given some of it to him as a gift; and (2) another attorney in the inquiring attorney's law firm informed the inquiring attorney that another one of the firm's clients (client C) was to receive a substantial gift of property from client A. The matters in which the inquiring attorney's law firm represents client B and client C are completely unrelated to the gifts of property from client A.

QUESTIONS

1. What ethical obligation does the inquiring attorney have with respect to inquiring further of client A or calling the situation to the attention of the Public Fiduciary?

2. Would the inquiring attorney's actions in having a guardian appointed for client A constitute a conflict of interest with the law firm's other clients?

ETHICAL RULES CITED

ER 1.6. Confidentiality of Information

(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, . . .

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ER 1.7. Conflict of Interest: General Rule

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(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. ....

ER 1.14. Client Under a Disability

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

Comment to ER 1.14:

If a legal representative has not been appointed, the lawyer should see to such an appointment where it would serve the client's best interests. Thus, if a disabled client has substantial property that should be sold for the client's benefit, effective completion of the transaction ordinarily requires appointment of a legal representative. In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the lawyer's part.

OPINION

When an attorney suspects that his or her client cannot adequately act in the client's best interests, the attorney must follow the procedures set forth in ER 1.14. ER 1.14(a) controls cases in which the disability of a client interferes with but does not wholly preclude "normal" attorney-client relations. However, if the client's disability is such that the client cannot identify or pursue his or her own interests in the legal matter, or is incapable of articulating the objectives of the legal representation, then ER 1.14(b) requires the attorney to take some action to protect the client's interests.

Obviously, the application of ER 1.14 involves the exercise of personal judgment and discretion on the part of the attorney, as the Comment to ER 1.14 suggests. Generally, it is the responsibility of the attorney to assess the facts of the particular situation, balancing the extent of the client's inability to communicate or to decide with the seriousness of the legal decisions that must be made.

Clearly, pursuant to ER 1.14, it is permissible, and probably advisable, for an attorney to discuss his or her concerns with the client. These discussions could provide a basis for assessing whether the client is capable of making decisions about the case, or whether the client will require the assistance of a guardian. However, in this case, when the inquiring attorney brings his concerns to the attention of the client, he must take care not to divulge information relating to the representation of the other two clients of his law firm who have received gifts of property from client A. Such information is deemed confidential by ER 1.6, and may not be divulged without those clients' consents after consultation.

The term "relating to representation" is very broad, and encompasses much more information than the attorney-client legal privilege. For the purposes of ER 1.6, the phrase "relating to representation" includes practically all information learned about a client during the course of the representation. See ABA/BNA Lawyer's Manual on Professional Conduct at 55:301; Geoffrey C. Hazard, Jr., and W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (2nd Ed.), § 1.6:108 at pp. 140-141.

Additionally, the inquiring attorney may wish to consult with an appropriate physician, diagnostician, or even the Public Fiduciary to determine his client's fitness to make decisions regarding the legal matter in which the inquiring attorney represents her. This is suggested by the Comment to ER. 1.14, which states that a lawyer may seek guidance from an appropriate diagnostician. In doing so, the attorney may disclose confidential information to the extent necessary for the diagnostician to render an opinion concerning the client's disability. American Bar Association Informal Opinion 89-1530 (October 20, 1989) (disclosure of information relating to representation, to the extent necessary to serve the best interests of a client reasonably believed to be disabled, is "impliedly authorized to carry out the representation" within the meaning of that term in Model Rule 1.6(a)). See also Association of the Bar of the City of New York Formal Opinion 1987-7 (December 18, 1987) (holding that disclosure of confidential information to the court, with the purpose of having a conservator appointed for a disabled client, is ethically permissible, because the client is not capable of making a considered judgment about consenting to such disclosure. The committee assumed that the lawyer would act with care to safeguard and advance his client's interests.)

If, under the circumstances, the inquiring attorney decides that he must proceed under ER 1.14(b) to have a guardian appointed for his client, this does not necessarily create a conflict of interest with his law firm's other clients. The applicable Ethical Rule in this instance is ER 1.7(b), which provides that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected, and the client consents after consultation.

The only "interest" of the two other clients of the inquiring attorney's law firm that would be affected by the appointment of a guardian is their ability to continue to take advantage of client A's disability. This, of course, is not an interest that should be protected. On the facts the inquiring attorney has supplied, where the legal matters involving clients B and C are completely unrelated to the gifts of property to them from client A, it does not appear that appointment of a guardian for client A, in itself, would materially limit his law firm's representation of the other clients.

In conclusion, we are of the opinion that the inquiring attorney may take reasonable steps to determine whether a guardian should be appointed for client A under the terms of ER 1.14(b). He may discuss the matter with the client and, if he reasonably believes that the client is incapable of adequately acting in her own interest, the inquiring attorney may divulge confidential information, without the client's consent, to the extent necessary for an independent diagnostician to make an assessment of the client's disability. The committee is of the opinion that seeking the appointment of a guardian for client A would not create a conflict of interest with the inquiring attorney's law firm's other clients B and C. Of course, information relating to the representation of those other clients must be kept confidential, unless they consent after consultation to have this information revealed.

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.