What should a lawyer do when a discharge letter may have been coerced by a controlling family member?

Plain-English summary

A lawyer had represented an elderly client for years, preparing a health care proxy, a general power of attorney, and a will favoring the client's children other than the resident child, whom the client feared and who had a drinking problem and was sometimes verbally abusive. The client kept the representation secret from the resident child, routing all contact through a friend. After the resident child arranged a joint meeting and learned of the representation, the lawyer received a faxed letter signed by the client discharging him and directing transfer of the file; the lawyer's confirming call was intercepted by an unidentified person who refused to let him speak with the client, and another attorney then claimed to represent the client and barred contact.

On the first question, the committee explains a client has the right to discharge a lawyer for any reason, and once paid the lawyer is normally obligated to deliver the file to successor counsel (Mass. R. Prof. C. 1.16(a)(3) and 1.16(e)). But here the lawyer had a reasonable basis to believe the client did not actually want to discharge him and signed the letter out of fear of his child. The committee concludes the lawyer should satisfy himself that the client freely decided to terminate the representation, suggesting he write to the new attorney to request a private meeting with the client to confirm the instructions.

On the second question, the committee applies Rule 1.14 alongside the Rule 1.6 duty of confidentiality. Rule 1.14(b) gives the lawyer discretion to disclose confidential information to family members, even where the lawyer believes the client is generally competent, when a normal client-lawyer relationship cannot be maintained because the client lacks sufficient capacity to make adequately considered decisions and is at risk of substantial harm. The committee concludes both conditions are reasonably met: the client's fear of the resident child appears to have overborne his capacity to make considered decisions, and he is at risk of substantial harm as the child takes charge of his property and life. Rule 1.14 therefore permits the lawyer to contact the other children, disclosing only what they need to know to protect the client, and the committee adds it would be prudent to refer them to another attorney.

In practice

Under this opinion, conduct that turns over a discharged client's file is the normal obligation under Rule 1.16, but where the discharge may not reflect the client's real wishes the lawyer should take steps to confirm them, such as requesting a private meeting through new counsel. Per the opinion, where the client lacks capacity to make adequately considered decisions and is at risk of substantial harm, Rule 1.14(b) permits disclosure to family members limited to what is necessary to protect the client. The committee leaves the capacity and risk assessments to the lawyer's reasonable belief.

Common questions

Q: Does a lawyer have to turn over the file when a client discharges him?

A: Normally yes. The committee notes a client may discharge a lawyer for any reason, and once paid the lawyer is generally obligated under Rule 1.16(e) to deliver the file to successor counsel.

Q: What if the lawyer suspects the discharge was coerced?

A: The committee concludes the lawyer should satisfy himself that the client freely decided to terminate the representation, for example by writing to the new attorney to request a private meeting with the client to confirm the instructions.

Q: Can the lawyer warn the client's other family members?

A: Under Rule 1.14(b), if the client lacks capacity to make adequately considered decisions and is at risk of substantial harm, the lawyer may disclose confidential information to family members, but only to the extent necessary to protect the client.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 1.16 (declining or terminating representation; return of the file), 1.14 (client with diminished capacity; protective action), and 1.6 (confidentiality), corresponding to the Model Rules of the same numbers.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Mass. R. Prof. C. 1.16(a)(3), 1.16(e) (discharge; return of the client's file)
• Model Rule 1.14 / Mass. R. Prof. C. 1.14 (client with diminished capacity)
• Model Rule 1.6 / Mass. R. Prof. C. 1.6 (confidentiality)

See also

• MA Bar Ethics Op. 05-03: Helping an impaired client prepare for trial
• MA Bar Ethics Op. 05-05: Representing a son in a guardianship over the client
• MA Bar Ethics Op. 11-01: Withdrawal and a stuck escrow

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2004-opinion-2004-1/opinion-2004-1