8.07. Reading: Ethics Committee Advisory Opinion No. 2014/15/5

Reading Guide

This reading discusses the difficulties faced by lawyers in dealing with clients with diminished capacity specifically in a situation where the lawyer believes the client is suffering from elder abuse. Read this closely and recognize the unique relationship between the lawyer and her client and how Rule 1.14 alters the traditional relationship.

Does Rule 1.14 allow a lawyer to disclose elder abuse when the client objects? If so – when?

What are some practical concerns a lawyer should consider before revealing that a client with diminished capacity is suffering from elder abuse?

What are a lawyer’s options when a client is not suffering from diminished capacity but the lawyer still believes that the client is being abused?

The Lawyer’s Authority to Disclose Confidential Client information to Protect a Client from Elder Abuse or Other Threats of Substantial Bodily Harm

Ethics Committee Advisory Opinion No. 2014/15/5

ISSUE PRESENTED:

Can an Attorney Disclose Confidential Client Information, Over a Client’s Objection, to Protect the Client from Elder Abuse or Other Threats of Substantial Bodily Injury?

Factual Background:

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.

In addition to the natural processes of deterioration that will occur at some point in the aging process, elder abuse is an increasingly well-documented phenomenon in the lives of older people from all demographic and economic backgrounds[1]  The National Center on Elder Abuse (“National Center”) defines several categories of elder abuse: physical abuse, sexual abuse, psychological abuse, financial exploitation, caretaker neglect, self-neglect and abandonment.[2] Abused elders experience poorer health and shorter life expectancies than those who are not victimized. In extreme cases of neglect, self-neglect and abandonment, fatal illnesses can result.

The National Center also 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”.[3] 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. They are not prepared to subject themselves or their families to the humiliation and loss of privacy that outside attention might bring. They are also afraid to face the unknown consequences that can stem from disclosure to third parties, which could include placement in nursing homes, separation of couples and general loss of control over the final years of their lives.

Medical and mental health professionals, social workers and geriatric care managers are better qualified than most lawyers to recognize and assess the significance of adverse physical and mental conditions–including injurious home environments–that old age can bring. They will also typically be better informed of the range of resources and treatment options that are available. Elder law attorneys recognize their limitations, and will look for opportunities, with the informed consent of their clients, to access multidisciplinary services for elderly clients.[4] In cases of family-based elder abuse, however, 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 of Professional Conduct 1.14 (Client with Diminished Capacity)

In some cases–although certainly not always–a client who refuses to authorize the disclosure of confidential information even when disclosure is necessary to protect the client from abuse by a third party may be manifesting a “diminished capacity” to appreciate the full significance of the threats he or she faces; or to render well-considered decisions regarding the best course to follow.

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.

[The opinion then quotes New Hampshire’s Rule 1.14 which is very similar to the ABA Rule]

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”, Rotunda and Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility, Section 1.14-1 at pp. 657-658; and Comment 6 to ABA Model Rule 1.14 identifies factors that will be important in an assessment of diminished capacity:

In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: 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. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

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. More specifically, Rule 1.14(c) confirms the continuing application of the basic confidentiality rule, Rule 1.6, to information relating to the representation. However, this subsection goes on to say that when dealing with a client with diminished capacity, an attorney will be “impliedly authorized”, under Rule 1.6(a), to disclose confidential client information “to the extent reasonably necessary to protect the client’s interests.” Rule 1.14 (c). As noted above, elderly clients may be incapacitated by conditions such as severe anxiety, depression, dementia, or Alzheimer’s disease–any of which may erode the client’s ability to make independent decisions regarding how best to protect their own welfare in the face of elder abuse. 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.

This conclusion is supported, we believe, by ethics opinions in several other jurisdictions that have applied Rule 1.14 in analyzing a lawyer’s confidentiality obligation in connection with a client’s threat to commit suicide. See Alaska Bar Assoc. Ethics Op. No. 2005-1 (“(U)nder ARCP 1.14, the attorney may disclose the client’s stated intent to commit suicide to the proper authorities [e.g., the court, appropriate mental health professionals, or appropriate detention facility personnel] irrespective of the client’s custodial status, but is not required to do so.”); Massachusetts Ethics Op 01-2 (2001)(“A lawyer may notify family members, adult protective agencies, the police, or the client’s doctors to prevent the threatened suicide of a client if the lawyer reasonably believes that the suicide threat is real and that the client is suffering from some mental disorder or disability that prevents him from making a rational decision about whether to continue living.”); CT Ethics Op. 00-5, 2000 (Under Rule 1.14, “a lawyer, without the client’s consent, may disclose the client’s intent to commit suicide in order to prevent it.”); SC Ethics Opinion 99-12 (similar result).

The confidentiality obligation of Rule 1.6 is not, however, the only concern faced by an attorney considering disclosure of confidential client information to protect a client. For example, while the final sentence of ABA Comment 6 to Model Rule 1.14 (set forth above) would appear to allow consultation with outside specialists without first securing the informed consent of the client, the comment does not address the potential waiver of confidentiality protections–including most importantly the attorney-client privilege–that could result from the participation of an outside health care provider.

More important, if the client or lawyer discusses ongoing elder abuse during consultations with an outside specialist, the information may trigger a reporting obligation that does not apply to the attorney. A report to law enforcement, of course, may be a consequence that the client vehemently opposes. It may also result in an involuntary change in living arrangements, guardianship and even the arrest and prosecution of a close family member. These steps may protect the client, but there may also be less draconian measures that provide similar protection with less disruption. Before bringing third parties into the situation, therefore, the attorney should attempt to determine whether reporting obligations will be triggered, or whether the attorney-client privilege will be waived.

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. “A client’s poor judgment does not suffice to warrant “protective action” under Rule 1.14(b).” ABA Formal Opinion 96-404 (1996). Well recognized ethics authorities have expressed this caution as follows: “(Rule 1.14) does not give the lawyer carte blanche to impose on the client the lawyer’s personal view of what is in the client’s best interest. Rather, Rule 1.14 authorizes the lawyer to engage in a limited intervention when the client’s mental incapacity is such that he or she cannot adequately protect his or her own interests.” Rotunda & Dzienkowski, supra at pp. 658-659. (Emphasis added.)

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 of Professional 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 the analytical framework for this issue. Relevant parts of the rule are set forth below:

Rule 1.6: Confidentiality of Information

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 the disclosure is permitted by paragraph (b).

A lawyer may reveal such information to the extent reasonably necessary:
(1) to prevent reasonably certain death or substantial bodily harm….

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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.[5] Citing commentary to both the ABA Model Rules of Professional Conduct and the New Hampshire Rules of Professional Conduct, the New Hampshire’s Supreme Court, in Lane’s Case, 153 N.H. 10 (2005), noted that the confidentiality interests protected by Rule 1.6 “serve[] as the foundation of the attorney-client relationship”; and that such protection encourages clients to communicate fully and frankly with the attorney even as to embarrassing or legally damaging subject matter”. Lane’s Case, supra, at 21 “Thus, the disclosure of client confidences is an extreme and irrevocable act.'” Id., citing NHRPC 1.6, N.H. cmt. (2005).

There are exceptions to this broad mandate of client confidentiality. Two of these exceptions, found in Rule 1.6(a), are disclosure with a client’s “informed consent” (not relevant to the present opinion), and disclosure “impliedly authorized in order to carry out the representation” (relevant to the present opinion only in circumstances involving a client’s diminished capacity, see Rule 1.14[c]). Three additional exceptions found in NHRPC 1.6(b)(2-4) are for disclosures “to secure legal advice”; disclosures to establish a claim or defense in attorney/client controversies or to defend against claims or allegations made in criminal or civil litigation or “any proceeding concerning the lawyer’s representation of the client”; and disclosures “to comply with other law or court order”.[6] These also do not provide authorization to disclose elder abuse over the client’s objection.

This leaves the confidentiality exception set forth at Rule 1.6(b)(1):

A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm or to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another.

As explained in comments to the ABA model rule, the 1.6(b)(1) exception “recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.” ABA Model Rule 1.6, cmt.6.

The Restatement of the Law Governing Lawyers elaborates on the overriding importance placed on life and “physical integrity” that supports the exception for disclosures necessary to prevent reasonably certain death or substantial bodily harm:

Threats to life or body encompassed within (Section 66 of the Restatement) may be the product of an act of the client or a non-client and may be created by wrongful acts, by accident, or by circumstances. (citation omitted). In all such events, the ultimate threat is the same, and its existence suffices to warrant a lawyer’s taking corrective steps to prevent the threatened death or serious bodily harm. Restatement at Section 66, Comment b, p.496.

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So long as the predicate threat to life or body exists, discretion (to use or disclose confidential information) exists notwithstanding that …the lawyer’s information comes from otherwise privileged conversations. Restatement at Section 66, Comment c, p. 498.

Mere suspicion that elder abuse or other forms of harm might be occurring is not adequate to trigger this exception. A lawyer can act under this exception only based on “reasonable belief”, defined in the Terminology Section of New Hampshire’s rules as existing when “the lawyer believes the matter in question and the circumstances are such that the belief is reasonable”, NHRPC 1.0(i). The definition, which requires both subjective and objective inquiries, was discussed by the dissent in Lane’s Case, supra at 25: “The lawyer must actually suppose [the matter in question] to be true’ and the circumstances must be such that the belief is reasonable.” (Citations omitted.) 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.

The Committee has noted that the threatened harm at issue in situations of elder client abuse is different than the harm typically encountered under NHRPC 1.6(b)(1), in which the disclosures are typically undertaken when the attorney’s client, not a third party, threatens death, substantial bodily harm or substantial financial or property damage to another. This distinction does not affect the analysis. Client consent for the disclosure must still be sought. And even if the client continues to object to disclosure of the elder abuse–in family-based situations for example–the attorney will almost always gain information from the discussion that informs his or her judgment regarding whether to proceed with disclosure over the client’s objection.

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, in order to prevent substantial harm to the client from occurring or continuing.

CONCLUSION:

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.

NOTES AND COMMENTARY

1.  Diminished Capacity: Children. Although the readings emphasize the idea of impaired capacity in the context of the elderly, it is not so limited. It also applies in any context where the client is impaired. Another area where you will find a client’s capacity may be diminished is with regard to children who lack the maturity or legal capacity to make decisions. However, with regard to children, lawyers may perform different roles – that can have significant impacts on the lawyer’s obligation. The lawyer might be the lawyer for the child or might be the guardian ad litem for the child. See Krisin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245 (2005). Those who are appointed as guardian ad litem in Mississippi would be well served to read the case S.G. v. D.C., 13 So.3d 269 (Miss. 2009) which discusses the role of the GAL in litigation and the importance of establishing up front the nature of the lawyer’s role. Consider this hypothetical: Client is a 21-year-old woman with Down Syndrome. She has the cognitive function level of a 6-8-year-old. Client lived with her mother until she was 18 and then expressed a desire to live with her father. Client’s mother sought custody. The court appoints you to represent Client in the guardianship matter. Client tells you that she wants to live with her father. You realize that she wants to live with her father because it is a more fun environment, but you determine that it is in the best interest of the child to live in the structured environment of her mother. Should you advocate for what Client wants or what you feel is in Client’s best interest?

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[1] [note 2 in original]  See generally, Fisher, Elder Abuse: A Private Problem that Requires Private Solutions, 8 J. Health & Biomedical L. 81 (Suffolk Law School 2012).

[2] [note 4 in original]  See Major Types of Elder Abuse, www.nccea.aoa.gov in the FAQ section.

[3] [note 5 in original]  The National Elder Abuse Incidence Study: Final Report at 1 (1998), cited at Fischer, supra, at p. 103, n. 155.

[4] [note 6 in original]  See generally Wydra, Keeping Secrets within the Team: Maintaining Client Confidentiality While Offering Interdisciplinary Services to the Elderly Client, 62 Fordham L. Rev. 1517 (1994)(arguing that the need for interdisciplinary services for elderly clients should be facilitated by enacting modifications to ethical [primarily confidentiality] rules that hinder interdisciplinary consultations.

[5] [note 9 in the original]  The Committee assumes, for purposes of this analysis, that the information regarding elder abuse or other form of threatened and substantial bodily harm is “confidential information relating to the representation” that is protected by Rule 1.6(a).

[6] [New Hampshire has a statute that requires reporting of “adult abuse” but has an explicit exception for communications between lawyers and clients – therefore a New Hampshire lawyer could not rely on this law to justify disclosure.]