Must a lawyer give a client psychological records when the provider requests nondisclosure?
Apply this to your situation
This page answers the general question as of 1997. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A psychologist sent records to a lawyer under the client's authorization, then asked the lawyer to withhold such records from the client in the future. The committee considered the lawyer's communication duties under North Dakota Rule 1.4.
The committee said disclosure was required when the client requested the records or communication about them was necessary to the representation. A provider's request alone did not displace that duty. It recognized a narrow exception when the lawyer reasonably believed disclosure would have a high probability of substantially harming the client or others; the lawyer could withhold or delay only as much as reasonably necessary to avoid that harm.
Currency note
This opinion was issued in 1997, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Could the psychologist's request alone justify withholding the records?
A: No. The committee said the lawyer had to disclose when the client requested the records or communication was needed for representation, subject to the opinion's substantial-harm exception.
Q: Did the opinion require a verbatim copy in every case?
A: No. It said discussion could sometimes satisfy the communication duty when the client had not requested a verbatim copy.
Q: Did the committee decide the psychologist's own disclosure duties?
A: No. It expressly declined to opine on the legal or ethical duties of health care professionals.
Background and rules framework
The committee relied on North Dakota Rule 1.4 and its comment about delaying information when disclosure would probably cause substantial harm. It noted that this North Dakota comment differed from the corresponding ABA Model Rule comment then in use.
Citations and references
Rules of Professional Conduct:
- North Dakota Rule 1.4.
Statutes:
- North Dakota Administrative Code § 50-02-10-01, quoted in the opinion on release of psychiatric records.
Cases:
- Disciplinary Board v. Britton, 484 N.W.2d 110 (N.D. 1992), duties of competent and informed representation.
See also
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/97-12.pdf
Original opinion text
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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