Ethics Committee Advisory Opinion #2014-15/05
By the NHBA Ethics Committee
Rules 1.6(b) (1) and 1.14(b-c) may authorize an attorney to take protective action on behalf of a client, including disclosing confidential client information if necessary, when sufficient evidence of actual or threatened harm to the client exists, and when the client either cannot, or refuses to, provide informed consent for disclosure.
A lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client when the client’s capacity to make adequately considered decisions in connection with a representation is diminished.
A lawyer may take reasonably necessary protective action when the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest.
Information relating to the representation of a client with diminished capacity is protected by Rule 1.6.
A lawyer is impliedly authorized to reveal confidential client information when taking protective action, but only to the extent reasonably necessary to protect the client’s interests.
This opinion was submitted for publication to the NHBA Board of Governors meeting and was published in Bar News on January 21, 2015.