Opinion #84. Disclosure of Client's Incapacity to Protect Own Interests

Issued by the Professional Ethics Commission

Date Issued: March 2, 1988

Question

An attorney representing a 67‑year‑old woman in a workers’ compensation matter believes he has reason to doubt the client’s ability to make rational financial decisions. He has given advice that has been ignored, resulting, he believes, in adverse consequences to the client. The client has a son who lives in the vicinity.

The affairs causing concern include the client’s refusal to accept delivery of checks for the payment of workers’ compensation benefits and the client’s refusal to retire from employment formally (although she is not in fact working), resulting in the loss of substantial retirement benefits. The client has exhibited signs of irrationality and is uncommunicative. She has not forbidden the attorney from communicating the foregoing concerns to family members; neither has she responded to a request for permission to do so. There is no indication of the clinical reason for her condition.

The Commission has been asked whether any bar rule would be violated if the inquiring attorney were to inform the son of his client that the attorney believes the client is incapable of making rational decisions concerning her affairs and that a conservatorship should be considered.

Opinion

The Commission concludes that if the attorney reasonably believes the client is not able to act rationally in her own interest, a limited disclosure of his concern to one or more members of the client’s family is permitted by the Bar Rules, provided the attorney further concludes that those family members have no interest in the client’s affairs adverse to that of the client.[1]

The Maine Bar Rules do not provide a great deal of direct guidance to attorneys facing the kind of problem described in the question. Three principles can be identified as at least potentially involved: the attorney’s obligation to refrain from disclosing confidences and secrets of the client; the client’s right to make decisions about her affairs; and, the attorney’s duty to act in the interest of the client. The first principle is made explicit by Bar Rule 3.6(1). The second and third principles, while generally acknowledged to accompany the attorney‑client relationship, are not expressed in so many words by any of the Bar Rules. Rather, they arise out of the agency relationship between lawyer and client, and are confirmed by the duty to avoid conflicts of interest and to preserve confidences and secrets of the client. [Developments in the Law—Conflicts of Interest in the Legal Profession, 94 Harvard Law Review 1244, 1252, 1260]

Both the ABA Code of Professional Responsibility and the ABA Model Rules of Professional Conduct are more explicit. DR 7‑101 of the Code provided, in pertinent part, “A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules . . . “ EC 7‑7 stated (with exceptions not material here) “the authority to make decisions is exclusively that of the client.” EC 7‑12, however, discussed in general terms the additional responsibilities of a lawyer whose client is disabled in such a way as to impair the ability to make “a considered judgment on his own behalf,” stating that such a disability could compel the lawyer to make certain decisions for the client unless a legal representative had been appointed, in which case the lawyer would be obliged to look to the legal representative.

The Model Rules are somewhat more specific. Rule 1.2 states: “A lawyer shall abide by a client’s decisions concerning the objectives of representation.” Rule 1.14(b) provides, however:

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.

Notwithstanding the failure of the Maine Bar Rules to achieve the detail of either the ABA Code or the Model Rules concerning the topic of this opinion we find no inconsistency in the principles involved.

Neither the ABA Code of Professional Responsibility nor the Model Rules discuss the dilemma of a lawyer who must reveal a client’s disabling condition, which might fairly be considered either a confidence, a secret, or “information relating to representation of a client” [Model Rule 1.6], in order to perform the duty of making choices for an incapacitated client (as in the Code) or seeking the appointment of a guardian (as in the Model Rules). A practitioner guided by the Model Rules might find this a disclosure “impliedly authorized in order to carry out the representation” [Model Rule 1.6(a)]. Neither the ABA Code nor the Maine Bar Rules expressly provides that escape from the problem.

In Opinion 69 the Ethics Committee of the Maine State Bar Association concluded that the disclosure by an attorney to the Social Security Administration of a client’s alcoholism would violate the duty to maintain confidences and secrets of a client, even though disclosure might be in the economic interest of a disabled client. The opinion assumed, however, that the clients involved had expressly directed the attorney not to disclose their condition, which in any event was more stigmatizing than a disability incident to aging. Moreover, the opinion does not indicate that the Committee considered the duty of an attorney to protect the interest of the client. Accordingly, we do not find the opinion to offer a persuasive solution to the question at hand.

In the present case, there is no indication that a confidence of the client would be involved in any part of the proposed disclosure and recommendation to a relative of the client. Rule 3.6(l) defines the term “secret” as including “information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or detrimental to the client.” Apparently the client has not yet given any directions with respect to disclosure of her mental condition. Under these circumstances we do not think the attorney is required to conclude that disclosure would be embarrassing and therefore to refrain from taking action that might be in the client’s clear financial interest. We conclude that it is reasonable for counsel confronted with a situation such as is described in the question to subordinate the risk of disclosing a confidence or secret of the client to the risk that failure to act will cause more serious damage to the client’s interests.

This Committee’s Opinion 58 emphasized the client’s right to make decisions in finding that appointed defense counsel did not have the right to enter a plea of not guilty by reason of insanity over the objection of the client, who the court had already determined to be competent. It may be that the client’s right to control the choice of objectives during the professional relationship must be honored by the attorney under all but the most extreme circumstances. There seems to be general agreement that the attorney may only participate in or contribute to an interference with that right when he reasonably concludes that the client has demonstrated an incapacity to decide. [e.g., Oregon State Bar, Desk Book for Lawyers, Opinion 237, February 29, 1973: see In re Valentine’s Guardianship, 294 P.2d 696 (Utah, 1956)] When that threshold has been crossed, however, we conclude that the attorney’s duty to act in the client’s interest takes precedence over the duty to carry out decisions the client expresses as his or her preference.

What the inquiring attorney proposes here is submission of the issue of incapacity to an appropriate tribunal for decision. Consequently, reliance on the client’s right to choose objectives during the professional relationship begs the question. It goes without saying that the attorney must have far stronger grounds for acting to seek the appointment of a guardian or to suggest that family members do so than mere disagreement with the client.

We conclude that the attorney’s mere withdrawal from representation is not likely to be a satisfactory resolution of the dilemma described in the question, since it leaves the client without advice when it seems to be most needed. [Cf. Mo. Bar Bull., March, 1980, Informal Opinion 1, July 17, 1979; 22 Ore. State Bar Bulletin 10, October, 1961, Opinion 100] It is possible that circumstances could arise justifying or forcing that step, such as a client’s directive that the attorney resist all attempts to obtain appointment of a conservator after the attorney himself has set the machinery in motion. Needless to say, however, any attorney considering withdrawal should be confident of having one or more of the grounds listed in Rule 3.5(c) and should take the precautions required by Rule 3.5(a).


Footnote

[1] If disclosure to members of the client’s family cannot be made within these limitations, the attorney may request assistance from the Division of Adult Services, Bureau of Social Services, Department of Human Services, which provides for adult guardianship services. The ABA Model Rules of Professional Conduct, Rule 1.14(b) would allow the attorney to seek appointment of a conservator himself.


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