MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2008-04
Attorney Confidentiality and Protecting the Best Interests of Incompetent Clients
Your recent request for an opinion has been considered by the Committee on Ethics of the Maryland State Bar Association. In your request, you set forth two scenarios, and have asked whether and when you may take steps to seek the appointment of a guardian for your clients without breaching your duty of confidentiality.
Scenario One – You state that you have represented a Husband and Wife for roughly ten years with respect to various matters, including the preparation of wills and a revocable trust. While mentally competent, the Wife executed a Durable General Power of Attorney in favor of the Husband, so that he could establish the revocable trust. Your letter implies that the Wife has since become mentally incompetent. The Husband then established the revocable trust (“the Trust”), with himself as trustee. At your clients’ request, you agreed to serve as successor trustee.
Some years thereafter, the Husband asked that you assume responsibility as sole trustee. You stated that, at the time that you were asked to become trustee, the Husband was concerned that one of his children (“the Child”) – who was providing services as a caregiver – had been was spending excessive amounts of money from trust funds. The Husband wished to place a buffer between himself and the Child.
The Trust pays all of the expenses of Husband and Wife. Since you have become the trustee, the Child has consistently overdrawn expenses on the Trust, and the Husband has directed you to pay those expenses. The Trust is a revocable one, and you have thus far followed the Husband’s instructions. You are concerned that the Husband is now becoming mentally incompetent, and that he may be subject to undue influence of the Child. You believe that it may be in your clients’ best interests to be examined by a physician and that a guardian of their person and property be appointed.
Scenario Two – You are the attorney of an elderly woman who you have represented for five years, and for whom you have prepared estate documents and have handled other various matters. Your client is independent and lives alone, but she has appeared to become increasingly incompetent within the past year. You are concerned that she may reach a point where she can no longer live independently and that, at that point, it may be in her best interest that a guardian of her person and property be appointed.
Effective July 1, 2005, the Court of Appeals of Maryland adopted the latest version of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”). MLRPC 1.6 sets forth the rule governing confidentiality of client information, and Rule 1.14 governs clients with diminished capacity:
Rule 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to 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).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
* * *
(6) to comply with these Rules, a court order or other law.
Rule 1.14. Client with Diminished Capacity
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) 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, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
Comment 8 to Rule 1.14 notes that “[d]isclosure of a client’s diminished capacity could adversely affect the client’s interests,” and Rule 1.6 therefore generally prohibits a lawyer from disclosing such information unless one of the exceptions to Rule 1.6(b) applies or such disclosure is permitted under Rule 1.14. Rule 1.14 provides guidance as to when such information may be disclosed. The correct action to take, however, will depend upon the circumstances and an exercise of professional judgment. As the commentary states, “[t]he lawyer’s position in such cases is an unavoidably difficult one.” MLRPC Rule 1.14 cmt. 8.
To the extent that a client is competent at the present time, you may discuss these issues in advance with your client and seek to obtain direction from the client. Under Rule 1.6(a), you are permitted to disclose confidential client information with the client’s informed consent. Under MLRPC Rule 1.0(f), “‘[i]nformed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonable available alternatives to the proposed course of conduct.” Disclosure of information pursuant to informed instructions from the client as to whether or when it would be appropriate to seek a guardianship, or as to the steps that should be taken in the event of incompetence, would not raise an issue under Rule 1.6(a). Even if the client suffers present diminished capacity, you should keep the client informed of your actions as far as possible. Rule 1.14, cmt 2.
Comment 5 to Rule 1.14 identifies a number of steps that a lawyer may take where he or she reasonably believes that a client is at risk of substantial physical, financial or other harm due to an inability to communicate or to make adequately considered decisions. These steps may include
Consulting with family members, delaying action if feasible to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals that have the ability to protect the client.
MLRPC Rule 1.14, cmt 5. In taking any of these actions, the lawyer should follow the client’s wishes and values to the extent known, as well as the client’s best interest, and should select a course of action that would “intrud[e] into the client’s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections.” Id. Selecting the best course of action will require you to evaluate the extent to which your client may participate in decisions. To determine the extent of a client’s diminished capacity, you should “consider and balance” a number of factors, including “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.” Rule 1.14, cmt. 6. Comment 6 states that a lawyer may seek guidance from “an appropriate diagnostician” in some “appropriate circumstances.” Id.
While an appropriate approach under Rule 1.14 may be to discuss the issues with the children or other close family members of an incapacitated client, the MLRPC also recognizes that this is not always the best course of action. In your Scenario One, you suggest a possible conflict between the Child and the best interests of the Husband and Wife, and you also mention other adult children who may not have such a conflict. One course of action may be to address these issues with the other adult children, but in such cases the attorney must make a reasoned judgment based upon his or her knowledge of the client or clients, and knowledge of their wishes and relationships with their children. In all cases, “the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client.” Rule 1.14 cmt. .8.
As noted above, a lawyer may, “in appropriate cases, seek[] the appointment of a guardian ad litem, conservator, or guardian.” Rule 1.14(b). The question is whether such an appointment is “necessary to protect the client’s interests.” Rule 1.14 cmt. 7. This may not always be the case – “appointment of a legal representatives may be more expensive or traumatic for the client than circumstances in fact require.” Id. “Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer.” Id.
It also may be appropriate to consult with governmental entities who have the ability to protect your client. A discussion of which entities may have such an ability and the extent to which such reporting is appropriate would be beyond the scope of the committee’s authority. As with other courses of action, the attorney must make a professional judgment and should disclose only that information needed to make the an appropriate report. See Rule 1.14(c) (stating that a lawyer may reveal information when taking protective action, “but only to the extent reasonably necessary to protect the client’s interests”).
Finally, with respect to Scenario One, we note that you have agreed to serve as sole Trustee of the revocable trust. A trustee may have legal duties separate from your ethical obligations as a lawyer, which would fall outside of the scope of this opinion. However, MLRPC Rule 1.6(b) permits a lawyer to reveal information relating to his or her representation of a client when the lawyer believes it reasonably necessary to comply with “other law.” See Harris v. Baltimore Sun Co., 330 Md. 595, 625 A.2d 941 (1993) (stating that, under prior rules, a lawyer who reveals confidential information under a reasonable belief that the revelation is required by other law is not in violation of the general prohibition against attorney disclosure of client information). The legal duties of a trustee or relating to the creation of a trust raise questions of law that fall outside of the scope of the committee’s authorization.
We hope that this response has addressed your inquiry and we thank you for your interest. Our opinions may be found on-line at www.msba.org.
REFERENCES:
MLRPC 1.0(f)
MLRPC 1.6
MLRPC 1.14
MLRPC 1.14 cmt. 2
MLRPC 1.14 cmt. 5
MLRPC 1.14 cmt. 6
MLRPC 1.14 cmt. 7
MLRPC 1.14 cmt. 8
Harris v. Baltimore Sun Co., 330 Md. 595, 625 A.2d 941 (1993).
ASSIGNED TO: Randolph S. Sergent
DATE ASSIGNED: 10/24/2007
DATE DISTRIBUTED: 1/8/2008