Can a lawyer reveal what an impaired client confided in order to have a conservator appointed for the client?

Plain-English summary

A lawyer had represented a client for five years, initially resolving serious financial problems including three years of unfiled tax returns, unpaid taxes, and rent arrears that had threatened eviction. In the course of the representation the lawyer learned the client was an alcoholic. After a period of rehabilitation and timely tax filings, the client resumed drinking, stopped keeping records, and became irrational in telephone conversations with the lawyer. The client's only known close relative was aware of the problem but had chosen not to petition for a conservator, and the lawyer knew of no other qualified person. In the lawyer's opinion the client had suffered substantial impairment of his ability to care for his property within the meaning of New York Mental Hygiene Law section 77.03(a), and the lawyer predicted financial, if not personal, ruin without a conservator. Because the lawyer's knowledge was gained in the representation, it constituted confidences and secrets under DR 4-101(A); the lawyer asked whether he could disclose it to a court in connection with a petition for a conservator, whether or not he was the petitioner.

The committee recognized that DR 4-101 appears to forbid such disclosure absent client consent, but reasoned that the rule presupposes a client able to make a considered judgment about consent. It applied EC 7-12, which addresses a client who cannot make such a judgment and provides that where a client's disability and the lack of a legal representative compel the lawyer to make decisions for the client, the lawyer should act with care to safeguard the client's interests. Citing ABA Model Rule 1.14 by analogy, the committee concluded that if the lawyer determines the client's alcoholism is so severe that the lawyer is compelled to make a decision about a conservatorship, and that disclosing what the lawyer knows about the alcohol problem is the only reasonable way to safeguard the client's interest, the lawyer may ethically do so. It emphasized this is not a course to be undertaken lightly, but only as a last resort when no other alternative can safeguard the client.

The committee drew an analogy to N.Y. State 486 (1978) and ABA Inf. Op. 83-1500 (1983), which permit disclosing a client's intention to take his own life, and to its own N.Y. City 79-47 on a physically disabled client, where it had said it is preferable that the petitioner be someone other than the attorney (who could then serve as the conservator's counsel), but that there is no bar to the attorney petitioning if there is no alternative. Finally, the committee advised that a lawyer who concludes he must disclose the client's disability should seek judicial permission to make any submissions containing confidences or secrets in camera and request that the file be kept under seal, to minimize prejudice to the client while facilitating the relief sought.

Currency note

This opinion was issued in 1987, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. A client with diminished capacity is now addressed by Rule 1.14, which expressly allows protective action and limited disclosure, and confidentiality by Rule 1.6. 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 disclose a client's confidences to get a conservator appointed?

A: The committee concluded that a lawyer may do so, but only when the client's disability compels the lawyer to act and disclosure is the only reasonable way to safeguard the client, and only as a last resort.

Q: Doesn't DR 4-101 bar disclosing what the client confided?

A: The committee reasoned that DR 4-101 presupposes a client able to make a considered judgment about consent, and applied EC 7-12 for a client who cannot, allowing the lawyer to act to safeguard the client.

Q: Should the lawyer be the one to petition for the conservator?

A: The committee said it is preferable that the petitioner be someone other than the attorney, who could then serve as the conservator's counsel, but there is no bar to the attorney petitioning if there is no alternative.

Q: How should the lawyer limit the harm of disclosing the client's condition?

A: The committee advised the lawyer to seek judicial permission to submit material containing confidences in camera and request that the file be kept under seal.

Background and rules framework

The opinion read New York Code DR 4-101 (confidences and secrets, defined in DR 4-101(A)) together with EC 7-12, which addresses a client under a disability who cannot make a considered judgment and may require the lawyer to make decisions to safeguard the client's interests. The committee cited ABA Model Rule 1.14 (client with diminished capacity) by analogy. The underlying conservatorship standard came from New York Mental Hygiene Law section 77.03(a). These correspond to ABA Model Rule 1.14 and Model Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• New York Code DR 4-101, DR 4-101(A); EC 7-12 (applied in the opinion)
• MR 1.14 (client with diminished capacity), cited by the opinion; MR 1.6 (confidentiality)

Statutes:

• New York Mental Hygiene Law section 77.03(a), substantial impairment and appointment of a conservator

Other opinions cited:

• N.Y. State 486 (1978); ABA Inf. Op. 83-1500 (1983): disclosing a client's intention to take his own life
• N.Y. City 79-47: petitioning for a conservator for a disabled client
• N.Y. City 1986-7; N.Y. City 1986-8: in camera, under-seal submission of confidences

See also

• NYC Bar Formal Op. 2018-1: Protective Action and Disclosure of Confidential Information
• CA COPRAC Op. 2021-207: Representing a Client With Diminished Capacity
• NYC Bar Formal Op. 1986-7: Disclosure of Client Confidences in a Lawyer's Self-Defense

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1987-7/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/3edf5b350d55d28131e7931c45acaade.pdf