When a lawyer reasonably believes an elderly client can no longer act rationally in her own interest, may the lawyer tell a family member and suggest a conservatorship?

Plain-English summary

An attorney represented a 67-year-old woman in a workers' compensation matter and came to doubt her ability to make rational financial decisions: she refused to accept compensation checks and refused to formally retire (though not working), losing substantial retirement benefits, and exhibited signs of irrationality and was uncommunicative. She had not forbidden the lawyer from telling family, nor responded to a request for permission. The Commission was asked whether any rule would be violated if the lawyer informed the client's son that he believed she could not make rational decisions and that a conservatorship should be considered.

The Commission concluded a limited disclosure to family was permitted on those conditions. It identified three principles in tension: the duty not to disclose confidences and secrets (Rule 3.6(l)), the client's right to decide her own affairs, and the lawyer's duty to act in the client's interest. Looking to the ABA Code (DR 7-101, EC 7-12) and the Model Rules (1.2 and 1.14(b), which allow seeking a guardian or protective action when the lawyer reasonably believes the client cannot adequately act in her own interest), it found no inconsistency with Maine's principles. On the facts, the Commission found no client confidence would be involved, and because the client had given no direction to hold her condition inviolate, the lawyer was not required to treat disclosure as embarrassing; it was reasonable to subordinate the risk of disclosing a secret to the risk that inaction would cause more serious harm to the client's interests. The Commission distinguished its earlier Opinion 69 (which barred disclosing a client's alcoholism, but assumed an express client directive against disclosure) and Opinion 58 (emphasizing the client's right to choose objectives). It concluded the client's right to control objectives may be honored except where the lawyer reasonably concludes the client has demonstrated an incapacity to decide, after which the duty to act in the client's interest takes precedence; and that mere withdrawal would not satisfactorily resolve the dilemma because it leaves the client without advice when most needed (subject to Rules 3.5(a) and 3.5(c) if withdrawal is pursued).

Currency note

This opinion was issued in 1988, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer tell a client's family that the client can no longer act rationally?

A: The opinion concluded a limited disclosure of that concern to family is permitted where the lawyer reasonably believes the client cannot act rationally in her own interest and the family members have no interest adverse to the client.

Q: Does the duty of confidentiality forbid such a disclosure?

A: The opinion concluded that on these facts no client confidence was involved, and because the client had given no directive to hold her condition inviolate, the lawyer was not required to treat the disclosure as embarrassing and refrain.

Q: When does the lawyer's duty to act override the client's stated preferences?

A: The opinion concluded the client's right to choose objectives must generally be honored, except where the lawyer reasonably concludes the client has demonstrated an incapacity to decide, at which point the duty to act in the client's interest takes precedence.

Q: Is simply withdrawing a good solution?

A: The opinion concluded mere withdrawal is unlikely to be satisfactory, because it leaves the client without advice when it is most needed; if withdrawal is pursued, the grounds in Rule 3.5(c) and the precautions in Rule 3.5(a) apply.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.6(l) (confidences and secrets) against the lawyer's agency duties to the client, and looks for guidance to the ABA Code (DR 7-101, EC 7-7, EC 7-12) and ABA Model Rules 1.2 (scope and client decisions), 1.6 (confidentiality), and 1.14(b) (client with diminished capacity; seeking a guardian or protective action). It also references Rules 3.5(a) and 3.5(c) (withdrawal procedures and grounds).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality); Model Rule 1.14 (client with diminished capacity); Model Rule 1.2 (scope)
• Maine Bar Rule 3.6(l); Rule 3.5(a); Rule 3.5(c)
• ABA Code DR 7-101, EC 7-7, EC 7-12 (cited for guidance)

Cases:

• In re Valentine's Guardianship, 294 P.2d 696 (Utah 1956), threshold for acting against a client's expressed preference

Other opinions cited:

• Maine Ethics Committee Opinions 58 and 69 (distinguished); Oregon State Bar Opinions 237 and 100

See also

• CA COPRAC Op. 2021-207: Diminished-Capacity Clients
• NYC Bar Op. 1987-7: Disclosure to Seek a Conservator

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91464

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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 clients 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 clients refusal to accept delivery of checks for the payment of workers compensation benefits and the clients 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 clients family is permitted by the Bar Rules, provided the attorney further concludes that those family members have no interest in the clients 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 attorneys obligation to refrain from disclosing confidences and secrets of the client; the clients right to make decisions about her affairs; and, the attorneys 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 clients 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 clients 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 clients 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 clients 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 clients 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 clients interests.

This Committees Opinion 58 emphasized the clients 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 clients 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 Valentines Guardianship, 294 P.2d 696 (Utah, 1956)] When that threshold has been crossed, however, we conclude that the attorneys duty to act in the clients 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 clients 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 attorneys 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 clients 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 clients 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.