Could a will-drafting lawyer tell a former client's current lawyer about the former client's mental condition?

Plain-English summary

A lawyer who had drafted a will was asked by the former client's current malpractice lawyer to discuss the client's earlier mental condition.

The opinion permitted discussion if the client had capacity and consented. If the client lacked capacity, it barred disclosure unless an appointed guardian consented. Whether an attorney-in-fact could authorize it depended on the exact power-of-attorney terms.

Currency note

This opinion was issued in 2000, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Could a capable client consent?

A: Yes. The opinion said Rule 4-1.6 would then allow discussion.

Q: Did a child's attorney-in-fact status automatically authorize disclosure?

A: No. The answer depended on the document's exact terms.

Background and rules framework

The opinion applied Rule 4-1.6 to disclosure of former-client information about mental condition.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

See also

• Missouri Informal Op. 20020055: Free Advice and Client Status

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20000208/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

Attorney prepared a will for Client several years ago. There has been no contact between Attorney and Client since that time. Attorney was recently contacted by a second attorney and that attorney requested that Attorney provide information about Client’s mental condition on or about that time. The second attorney is representing Client in a medical malpractice action.

Question 1: May Attorney discuss competency without a court order if Client is capable of giving consent?

Question 2: May Attorney discuss competency without a court order if Client is incapable of giving consent?

Question 3: May Attorney discuss competency without a court order if Client is incapable of giving consent but a child of Client is named as attorney-in-fact under a durable power of attorney?

Answer 1: Yes. If Client has the capacity to consent to the disclosure and does so, Rule 4–1.6 would not preclude Attorney from discussing Client’s competency.

Answer 2: No. Attorney may not reveal information relating to Attorney’s representation of Client if Client is incapable of consenting to the disclosure. If a guardian has been appointed, Attorney may discuss Client’s competency, if the guardian consents.

Answer 3: It would depend on the exact terms of the durable power of attorney.