Bar News - January 21, 2015
Ethics Opinion: Ethics Opinion Addresses Confidentiality in the Face of Abuse
NH Bar Association Ethics Opinion 2014-15/5 addresses the lawyer’s authority to disclose confidential client information, over a client’s objection, to protect a client from elder abuse or other threats of substantial bodily harm.
What follows is a brief synopsis of the opinion. Read the full opinion.
Lawyers representing the elderly frequently encounter problems that require more than purely legal solutions and that are better handled with the assistance of specialists from other fields. While this can happen with clients of all ages, the elderly client will frequently suffer from mental impairments such as depression, dementia and Alzheimer’s disease. The medical problems and loss of mental acuity that can accompany old age also can undermine the client’s ability to work with his or her attorney to assess situations and make decisions that are in the client’s own best interests.
The National Center on Elder Abuse reports that “in almost 90 percent of the elder abuse and neglect incidents with a known perpetrator, the perpetrator is a family member, and two-thirds of the perpetrators are adult children or spouses.” When family members are involved, victims are frequently reluctant to disclose the problem or seek help from third parties outside of the attorney-client relationship.
In cases of family-based elder abuse, the client will frequently object to the disclosure of information necessary to secure assistance from parties outside of the attorney-client relationship. This leads to the ethical question underlying this opinion: whether an attorney can disclose confidential client information, over the client’s objection, to secure assistance for a client who is threatened by ongoing elder abuse or other forms of substantial bodily injury.
Analysis under Rule 1.14
(Client with Diminished Capacity)
If the client is acting with diminished capacity, Rule 1.14 modifies some of the ethical rules applicable to the attorney-client relationship so as to give the attorney greater latitude than might otherwise be the case to protect the interests of the client. These modifications include, under certain circumstances, relaxation of the rigorous duty of confidentiality an attorney traditionally owes to his or her client.
New Hampshire’s rules do not define “diminished capacity;” nor do the ABA Model Rules of Professional Conduct. However, “(w)hen a diminished capacity results from mental impairment, the lawyer must make an assessment of the client’s mental capacity,” according to Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility. Comment 6 to ABA Model Rule 1.14 identifies factors that will be important in an assessment of diminished capacity: the client’s ability to articulate reasoning leading to a decision; variability of state of mind and ability to appreciate consequences of a decision; and the consistency of a decision with the known long-term commitments and values of the client.
If, through consideration of these or other factors, the lawyer concludes that his or her client has diminished capacity, it is clear that Rule 1.14 relaxes an attorney’s ethical duty to protect client confidentiality. If the mental impairment resulting from such conditions rises to the level of “diminished capacity”, and the client is at “risk of substantial physical, financial or other harm unless action is taken…”, Rule 1.14(b), the lawyer may make careful and limited disclosures of confidential client information in order to protect the client.
To protect the client and minimize disruption in his or her life, an attorney should attempt to determine whether additional reporting obligations will be triggered, or whether the attorney-client privilege will be waived, before bringing third parties into the situation.
In sum, when “diminished capacity” exists, Rules 1.14(b) and (c) allow a lawyer to use or disclose confidential client information, without a client’s consent, “to the extent reasonably necessary” to protect the client from elder abuse or other threatened substantial injury bodily. Diminished capacity will not, however, exist in all or even most cases. For example, a client’s bad decisions do not amount to “diminished capacity” that allows a lawyer to intervene. Because all consequences of unauthorized disclosure of confidential client information cannot be foreseen or controlled by the lawyer, a determination of “diminished capacity” must be made with great care.
Analysis under Rule Conduct 1.6 (Confidentiality of Information)
This leaves for discussion the lawyer’s authority to use or disclose confidential client information, over the client’s objection, to protect the client from threatened and substantial bodily harm when diminished capacity does not exist. Rule 1.6 provides that (a) “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation,” or (b) when information is revealed only “to the extent reasonably necessary: (1) to prevent reasonably certain death or substantial bodily harm…”
Rule 1.6(a), which encompasses not just attorney-client communications but all “information relating to the representation,” mandates sweeping protection for confidential client information.
Mere suspicion that elder abuse or other forms of harm might be occurring is not adequate to trigger the exception under Rule 1.6(b)(1). A lawyer can act under this exception only based on “reasonable belief.” There must be sufficient evidence (bruises, personality change, manifestations of fear or trepidation, eye witness statements or statements by the client) to lead to an actual supposition that the client is being abused physically or psychologically or threatened with such abuse.
Further, the attorney should seek consent from the client directly, and if possible in person, before acting on the attorney’s belief that elder abuse and substantial physical harm is occurring or threatened. Not only is it possible that this discussion will provide more evidence regarding whether risks to the client are real. The discussion will also provide an opportunity to underscore the support the client will receive from the attorney, other professionals and reliable family members if consent is given to disclosure.
In sum, Rule 1.6(b)(1) – even in the absence of diminished capacity – may also authorize an attorney to use or disclose confidential client information, over the client’s objections, to prevent substantial harm to the client from occurring or continuing.
An attorney must always proceed with thoughtful, cautious analysis in deciding to reveal a client’s confidences. However, 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, Rules 1.6(b) (1) and 1.14(b-c) may authorize the attorney, after considering other less irrevocable options, to take protective action on behalf of the client even when the disclosure of confidential client information is necessary during the process.