I represented my client's attorney-in-fact under a power of attorney for an elderly principal. The power of attorney ended and a guardian was appointed for the principal. Can I give the guardian copies of my file from representing the attorney-in-fact?

Plain-English summary

The inquiring attorney represented an individual serving as attorney-in-fact under a statutory power of attorney (under the Rhode Island Short Form Power of Attorney Act, R.I. Gen. Laws Section 18-16-1 et seq.) for an elderly principal. The sole purpose of the representation was to help the attorney-in-fact understand and carry out the legal rights and duties of that role; the attorney-in-fact and the inquiring attorney signed a retainer agreement. The power of attorney was later terminated and a probate court appointed a guardian for the elderly principal; the attorney-in-fact is not the appointed guardian. The guardian asked the inquiring attorney for copies of the retainer agreement, correspondence with the attorney-in-fact and with third parties, and billing statements from the representation.

The panel noted the Act expressly authorizes an attorney-in-fact, for every matter the attorney-in-fact has authority to act on, to "hire, discharge and compensate any attorney" the agent deems desirable for properly executing the powers granted, and to keep records of those actions. Because the sole purpose of the representation was to advise and assist the attorney-in-fact in exercising rights and duties held for the principal's benefit, and because in retaining the inquiring attorney the attorney-in-fact was acting for, in the place of, and on behalf of the principal consistent with the Act, the panel concluded that information relating to the representation of the attorney-in-fact is, for all intents and purposes, information relating to the elderly principal. On that basis, the panel found Rule 1.6 would have permitted the inquiring attorney to reveal that information to the principal directly, and concluded Rule 1.6 likewise permits revealing it to the principal's court-approved guardian.

In practice

The opinion holds that when a lawyer's client is an agent acting under a power of attorney solely to exercise rights and carry out duties for the principal's benefit, information relating to that representation is treated as belonging to the principal for Rule 1.6 purposes, so the lawyer may share it with the principal directly and, once the power of attorney ends and a guardian is appointed, with that guardian, without needing separate consent from the former attorney-in-fact.

Common questions

Q: I represented someone acting as attorney-in-fact, not the elderly principal directly. Whose confidentiality applies?

A: The opinion holds that where the representation's sole purpose was to help the attorney-in-fact exercise rights and duties for the principal's benefit, the information relating to that representation is treated as belonging to the principal, not just the attorney-in-fact.

Q: Does it matter that the attorney-in-fact and I had our own retainer agreement?

A: No. The opinion treats the retainer agreement itself, along with correspondence and billing records, as information relating to the representation that may be shared with the principal or the principal's guardian, because the attorney-in-fact retained counsel while acting for and on behalf of the principal under the statutory power of attorney.

Q: Does the power of attorney's termination change the analysis?

A: No. The opinion holds Rule 1.6 permits sharing the information with the principal's subsequently appointed guardian even after the power of attorney terminated and the attorney-in-fact is no longer serving in that role.

Background and rules framework

The opinion applies Rhode Island Rule 1.6 (Confidentiality of Information) against the backdrop of the Rhode Island Short Form Power of Attorney Act, R.I. Gen. Laws Section 18-16-1 et seq., which expressly authorizes an attorney-in-fact to hire and compensate an attorney to properly execute the powers granted under the power of attorney. Because the attorney-in-fact acts for and on behalf of the principal in retaining counsel under the Act, the panel treats representation-related information as information relating to the principal for confidentiality purposes.

Citations and references

Rules of Professional Conduct:

• MR 1.6(a)-(b) (confidentiality of information; scope of information relating to a representation)

Statutes:

• R.I. Gen. Laws Section 18-16-1 et seq. (Rhode Island Short Form Power of Attorney Act), including Sections 18-16-3(11), -4(9), -5(12), -6(16), -7(9), -8(12), -9(8), -10(6), -11(4) (attorney-in-fact's express authority to hire and compensate an attorney)

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• Alabama Ethics Op. 2010-03: Representation of an Estate and Client Identity
• DC Bar Op. 353: Whether a Lawyer Representing a Client With Diminished Capacity Can Seek the Appointment of a Substitute Surrogate Decision-Maker When the Current Surrogate Decision-Maker Is Making Decisions for the Client Against the Advice of the Lawyer
• Alabama Ethics Op. 1995-03: Lawyer may seek appointment of a guardian or take other protective action if lawyer reasonably believes that client cannot adequately act in client's own interest

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2014-05.pdf

Original opinion text

Final

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2014-05
Issued July 10, 2014

FACTS

The inquiring attorney represented an individual who was the attorney-in-fact under a power of attorney. The inquiring attorney states that the sole purpose of the representation was to assist the individual in his/her capacity as the attorney-in-fact for the principal, an elderly individual. Specifically, the inquiring attorney helped the attorney-in-fact to understand his/her legal rights and duties as such; and assisted the attorney-in-fact to perform the legal duties and to exercise the legal rights of an attorney- in-fact, to the extent that a lawyer's services were relevant to those duties and rights. The attorney-in-fact and the inquiring attorney entered into a retainer agreement. The power- of-attorney was subsequently terminated, and a guardian was appointed for the elderly individual by a probate court. The attorney-in-fact is not the appointed guardian.

The guardian has asked the inquiring attorney for copies of documents relating to the inquiring attorney's representation of the attorney-in-fact, including copies of the retainer agreement, correspondence between the inquiring attorney and the attorney-in- fact, correspondence the inquiring attorney sent to third parties, and billing statements pertaining to the representation of the attorney-in-fact. The inquiring attorney asks whether his/her obligation of confidentiality prohibits him/her from complying with the guardian's request.

ISSUE PRESENTED

May the inquiring attorney, who represented the attorney-in-fact for an elderly individual, provide copies of documents relating to the representation to the subsequently appointed guardian of the elderly individual?

OPINION

Rule 1.6 of the Rules of Professional Conduct permits the inquiring attorney to comply with the request of the elderly individual's guardian for copies of documents relating to the inquiring attorney's representation of the former attorney-in-fact for the elderly individual. Final Op. #2014-05 Page | 2

REASONING

Rule 1.6, entitled "Confidentiality of information" states as follows:

Rule 1.6. Confidentiality of information. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(3) to secure legal advice about the lawyer's compliance with these Rules; or
(4) to comply with other law or a court order.

The inquiring attorney submitted a copy of the document creating the power-of- attorney. It is a statutory power-of-attorney pursuant to Rhode Island General Laws §18- 16-1 et seq., entitled "Rhode Island Short Form Power of Attorney Act" (hereinafter, the Act). The Panel has reviewed the Act. For each matter about which an attorney-in-fact has authority to act on behalf of the principal under the Act, the principal expressly authorizes the attorney-in-fact as follows:

"To hire, to discharge and to compensate any attorney, accountant, expert witness or other assistant or assistants when the agent deems this action to be desirable for the proper execution by him or her of any of the powers described in this section, and for the keeping of needed records of these actions;…" G.L. §§18-16-3(11), 4(9), 5(12), 6(16), 7(9), 8(12), 9(8), 10(6), 11(4).

According to the inquiring attorney, the sole purpose of the representation was to advise and assist the attorney-in-fact relative to his/her rights and obligations under the power-of-attorney. The inquiring attorney acknowledges that his/her advice and assistance was for the benefit of the principal, the elderly individual. In retaining the inquiring attorney, the attorney-in-fact was acting for, in the place of, and on behalf of the principal, consistent with the Act's provisions which expressly authorize the attorney- Final Op. #2014-05
Page | 3

in-fact to retain and to compensate an attorney for the proper execution of the powers granted under the power-of-attorney. Thus, information relating to the representation of the attorney-in-fact in this inquiry, for all intents and purposes is information that relates to the elderly individual, the principal. As such, the Panel is of the opinion that Rule 1.6 would have permitted the inquiring attorney to reveal to the principal information relating to the representation of his/her attorney-in-fact. The Panel believes that Rule 1.6 permits the inquiring attorney to also reveal that information to the court-approved guardian of the elderly individual, formerly the principal, under the power-of-attorney that is the subject of this inquiry.

Accordingly, based on the facts as presented, the Panel concludes that Rule 1.6 permits the inquiring attorney to comply with the request of the elderly individual's guardian for documents relating to the inquiring attorney's representation of the former attorney-in-fact for the elderly individual.