Can a lawyer withhold a client's psychotherapy notes from the client when HIPAA restricts the client's access to them?

Plain-English summary

A nonprofit legal organization represents clients with mental-health issues in Social Security matters. To advocate effectively it obtains the client's psychotherapy notes under a HIPAA release, but does not show those notes to the client, because HIPAA recognizes that some patients are not served by seeing their psychotherapist's notes. A mental-health provider refused to release the notes, arguing that the Montana Rules of Professional Conduct give the client an absolute right to everything in the attorney's file. The committee disagrees and concludes the attorney may, in this limited context, withhold the notes.

The committee starts from the general rule that a client is entitled to the file when the representation ends, then identifies the recognized exceptions. A lawyer need not deliver materials personal to the lawyer or created for the lawyer's internal use, a limitation the committee traces to Ethics Opinion 950221. More directly, the duty to deliver client property under Rule 1.16(d) reaches only papers and property "to which the client is entitled," and the committee finds that neither HIPAA, the Montana Uniform Health Care Information Act, nor the Rules of Professional Conduct create a client entitlement to the psychotherapist's own notes. HIPAA's regulatory scheme (45 CFR 164.508 and 164.512(e)) instead provides tight, filtered access keyed to litigation use.

The committee reads the prompt-delivery duty as carrying its own exceptions: when the client agreement provides otherwise, when a rule provides otherwise, and when withholding is "otherwise permitted by law." HIPAA's protections fall within the "permitted by law" exception. Under Rule 1.2(a), a lawyer may take action impliedly authorized to carry out the representation, and the committee concludes the organization may put limiting language in its representation agreement so the client agrees up front that access to the psychotherapy notes is restricted by state and federal law. The committee adds that the organization may also enter a separate agreement with the mental-health facility that the notes will not be released to the patient, and that a lawyer holding property under an agreement with a non-client must honor that agreement.

In practice

Under this opinion, a Montana lawyer who obtains a client's psychotherapy notes in a representation where HIPAA restricts the client's own access may withhold those notes from the client, because the client is not entitled to that portion of the file and the "permitted by law" exception applies. The opinion ties this result to a fee or representation agreement that states the limitation, so the client agrees to it; absent that, the analysis is the general file-delivery rule of Rule 1.16(d). The opinion describes a narrow fact pattern (Social Security advocacy under a HIPAA release) and does not address withholding other categories of file material.

Common questions

Q: Can a lawyer keep a client's psychotherapy notes from the client?

A: In the limited context the opinion addresses, yes. The opinion concludes neither HIPAA, the Montana Uniform Health Care Information Act, nor the Rules of Professional Conduct entitle the client to the psychotherapist's notes.

Q: Doesn't the client have a right to the entire file?

A: No. The opinion holds the duty under Rule 1.16(d) reaches only materials "to which the client is entitled," and recognizes exceptions for materials personal to or internal to the lawyer, citing Ethics Opinion 950221.

Q: What lets the lawyer withhold the notes?

A: The opinion relies on the exception for delivery "otherwise permitted by law," finding HIPAA's restrictions on access to psychotherapy notes fall within it.

Q: How should the limitation be documented?

A: The opinion says the organization can include language in the representation agreement that access to the notes is restricted by state and federal law, and can separately agree with the mental-health facility that the notes will not be released to the patient.

Background and rules framework

The opinion interprets Rule 1.16(d) (Declining or Terminating Representation; Model Rule 1.16), which requires a lawyer on termination to surrender papers and property "to which the client is entitled," and Rule 1.2(a) (Scope of Representation; Model Rule 1.2), which allows a lawyer to take action impliedly authorized to carry out the representation, read together with the communication duty in Rule 1.4. The governing external law is HIPAA (45 CFR 164.508, 164.512(e)) and the Montana Uniform Health Care Information Act, MCA 50-16-501 et seq.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Mont. R. Prof. Cond. 1.16(d) (surrender of papers and property to which the client is entitled)
• Model Rule 1.2 / Mont. R. Prof. Cond. 1.2(a) (scope of representation; impliedly authorized action)
• Model Rule 1.4 (communication)

Statutes and regulations:

• 45 CFR 164.508, 164.512(e) (HIPAA; authorizations and disclosures for judicial and administrative proceedings)
• Montana Uniform Health Care Information Act, MCA 50-16-501 et seq.; MCA 50-16-542; MCA 53-21-165, 53-21-166

Other opinions cited:

• State Bar of Montana Ethics Opinion 950221 (lawyer may retain materials personal to or internal to the lawyer)

See also

• State Bar of Montana Ethics Op. 950221: Return or Retention of a Former Client's Papers
• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• ABA Formal Op. 94-385: Subpoenas of a Lawyer's Files

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/100412.pdf

Original opinion text

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

Ethics Opinion

FACTS: A non-profit state-wide legal organization represents clients with mental health issues in their efforts to obtain social security benefits. To effectively advocate, the organization has their client/patient sign what it believes is a Health Insurance Portability and Accountability Act (HIPAA) compliant release that asks for psychotherapy notes. The client/patient is aware that the organization is asking for these and that the organization may potentially submit the material to the tribunal. HIPAA specifically recognizes that there are situations where those with mental impairment are not served by seeing their psychotherapist's notes and provides the means for a health care provider to protect against disclosure to the patient (subject to exceptions, identified further below). See also, Montana Uniform Health Care Information Act, MCA 50-16-501 et seq., and 50-6-801 and specifically M.C.A. § 50-16-542; See also MCA 53-21-165 and 166. The organization was recently denied psychotherapist notes by a mental health services provider asserting that the Montana Rules of Professional Conduct mandate that the client/patient have access to all information in their attorney's file and that the attorney cannot prevent access to the notes by the client/patient. The organization disagrees, explaining that it needs the information to advocate for the client/patient's social security benefits. The organization's attorneys explain to their clients that it is within their attorney's rights to keep the psychotherapy notes from the client/patient. To date, keeping the records from the client/patient has not been an issue because the issue is explained to the clients and the clients accept that it is in their best interest not to see their psychotherapy notes.

QUESTION PRESENTED: When representing a client in a social security matter, does an attorney have a right to withhold a client's psychotherapy records from a client under the Montana Rules of Professional Conduct?

SHORT ANSWER: In this limited context, yes. The Committee accepts as an assumption that there are regulatory procedures within HIPAA that define the restrictions surrounding psychotherapy notes. Subject to those procedures, an attorney may take such action on behalf of the client as is impliedly authorized to carry out the representation—including restricting access to psychotherapy notes. Further, a client is not entitled to the complete attorney file, particularly if there is language in the attorney fee agreement--to which the client agrees--setting forth that the client is not entitled to a specific portion of the file.

DISCUSSION:

The general rule is that clients are entitled to their attorney's file upon termination of their relationship with an attorney. There are, however, some limited exceptions to this general rule and what a client is entitled to in connection with litigation. For example, a lawyer is entitled to retain and is not obliged to deliver to a client or former client papers or materials personal to the lawyer or created or intended for internal use by the lawyer. A discussion of these limitations is found in Ethics Opinion 950221. The regulatory mechanisms of HIPAA provide tight restrictions on access to psychotherapy records—for the patient and for the patient's attorney. Notably, however, the HIPAA regulations concerning psychotherapy notes specifically provide for discovery of the notes in judicial and administrative proceedings, with restrictions. See, e.g. 45 CFR 164.508 and 164.512(e). The HIPAA regulatory system recognizes the reality that psychotherapist's notes may be discoverable and used in litigation just as other health care information is used.

The Montana Rules of Professional Conduct strike a similar balance. There is no mandate in the Rules of Conduct that require disclosure of psychotherapist's notes obtained by the attorney on a client's behalf. As the information moves from the psychotherapist to an adjudicator, there are filters that can be put in place to protect a patient/client from this most sensitive information. Montana Professional Conduct Rule 1.16 (d) provides that upon termination of representation a lawyer shall take steps to the extent reasonably practicable to protect a client's interests. Included within those is the obligation to surrender papers and property "to which the client is entitled." Neither the HIPAA regulations nor the Montana Uniform Health Care Information Act nor Rules of Professional Conduct provide an entitlement to a client of their psychotherapist's notes.

Lawyers routinely act as custodians, conduits, and safe keepers of clients' property, including client files. Lawyers have a duty to deliver and account for a client's property, including the file. The duty is triggered when the lawyer's custodial obligations have come to a close and the client is entitled to take possession. But the Rules of Professional Conduct also set forth several common-sense exceptions to the prompt disbursement requirement: (1) when the agreement with the client provides otherwise; (2) when the rule states otherwise (most notably, when there is a legitimate dispute as to ownership of the property); and (3) when otherwise permitted by law. The "when otherwise permitted by law" exception encompasses the protections addressed in the HIPAA regulations.

Montana Professional Conduct Rule 1.2 addresses the scope of representation and allocation of authority between a lawyer and client. Rule 1.2(a) provides in part that a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4 on communication, shall consult with the client as to the means by which they are to be pursued. The rule also provides that "A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation."

The organization in the facts presented here can include specific language in their attorney-client representation agreement that there are limitations on access to psychotherapy notes. The agreement can further explain that the lawyer is bound to follow the constraints imposed by state and federal law pertaining to health care records, and that the constraints override the client's access to the notes. If the attorney explains the limitations on their responsibilities to the client in this fashion, the client has no claim to the restricted portion of the file upon termination of the representation. In addition, the organization can enter a separate agreement with the mental health facility, providing that psychotherapy notes will not be released to the client/patient. Case law and other state's ethics opinions are clear that if a lawyer has an agreement with a non-client regarding disposition of funds or property, the lawyer must honor that agreement.

THIS OPINION IS ADVISORY ONLY