When relatives consult a lawyer about a mentally incapacitated cousin and appear to want to transfer his property against his interests, may the lawyer report the matter to protective services, and who is the client?

Plain-English summary

A relative ("A") asked to meet a lawyer about a cousin who, A said, was mentally deficient. The cousin is an only child whose deceased parents owned property; the mother's estate was probated and the property passed to the cousin and the father by deed of distribution, but the father's estate was unprobated. The lawyer confirmed ownership and estate status from the records. At the meeting, A brought the cousin's aunt ("Aunt B") and uncle ("Uncle") and explained the cousin is mentally incapacitated, though never judicially determined to be; the cousin receives Medicaid and VA benefits, and an elderly aunt ("Aunt C," who did not attend) acts as the cousin's caretaker. The lawyer advised A, Aunt B, and Uncle how to protect the cousin's interests (appointing a conservator, probating the father's estate, selling property for the cousin's benefit) but had reason to believe A was not receptive and that A, Aunt B, and Uncle intended to transfer the cousin's property without regard to his best interests, so the lawyer refused to participate. The lawyer asked whether he is prohibited from reporting the matter to DSS or a protective service entity, who his client is, and what his obligations to the cousin are.

The committee concluded that, although a lawyer ordinarily owes clients a duty of confidentiality, under these circumstances the lawyer is not prohibited from reporting the matter to DSS or an appropriate protective service entity. It declined to decide who the client is, calling that a question of law, but explained the result is the same whoever the client is, and the lawyer has no ethical obligation to the cousin unless the cousin is the client. It walked through the possibilities: if A or Uncle is the client, Rule 1.18 (duties to prospective clients) governs, and even absent a client-lawyer relationship the lawyer may not use or reveal consultation information except as Rule 1.9 permits, with Rule 1.6 governing disclosure; if Aunt C is the client, Rule 1.18 does not apply (no contact), and Rule 1.6 controls; if the cousin is the client, Rule 1.18 again does not apply, and Rule 1.14 lets the lawyer take protective action to protect a client from substantial financial or other harm, including consulting entities that can protect the client and seeking appointment of a guardian ad litem, conservator, or guardian.

Applying Rule 1.6, the committee explained disclosure is barred unless the client consents, it is impliedly authorized, or paragraph (b) permits it. The facts do not show A or Uncle would consent or that disclosure is impliedly authorized to carry out their representation; if Aunt C is acting in the cousin's best interests, disclosure could be impliedly authorized as necessary to protect the cousin; and if the cousin is the client, Rule 1.14 authorizes it. Even without consent or implied authorization, Rule 1.6(b)(1) and (b)(3) may permit disclosure to prevent a criminal act against the cousin, or a crime or fraud causing substantial injury to his financial interests in furtherance of which the client used the lawyer's services; because the lawyer declined to participate in the transfer, the committee pointed to Rule 1.6(b)(1) as the basis to disclose. Regardless of who the client is, the lawyer may disclose information about the potential harm to the cousin but has no ethical duty to do so; the opinion does not address reporting requirements under other law, and Rule 1.6(b)(7) permits disclosure to comply with other law.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, the lawyer may report the suspected exploitation of the incapacitated cousin to DSS or a protective service entity but is not required to. The committee declined to decide who the client is, holding it a question of law, but concluded the disclosure analysis comes out the same: Rule 1.18 or Rule 1.6 (and Rule 1.14 if the cousin is the client) frame the duties, and Rule 1.6(b)(1) permits disclosure to prevent a criminal act against the cousin even though the lawyer refused to assist the transfer. It noted the lawyer owes the cousin an ethical obligation only if the cousin is the client, and that other law may separately require or permit reporting under Rule 1.6(b)(7).

Common questions

Q: Can the lawyer report suspected financial exploitation of the incapacitated cousin?

A: Yes. The committee concluded the lawyer is not prohibited from reporting the matter to DSS or an appropriate protective service entity, while noting there is no ethical duty to do so.

Q: Does the lawyer have to figure out who the client is first?

A: The committee declined to decide who the client is, calling it a question of law, and concluded the disclosure result is the same whoever the client is.

Q: What rule lets the lawyer disclose here?

A: Because the lawyer declined to participate in the property transfer, the committee pointed to Rule 1.6(b)(1) (disclosure to prevent a criminal act against the cousin); if the cousin is the client, Rule 1.14 separately authorizes protective action.

Q: Does the lawyer owe duties to the cousin?

A: The committee said the lawyer has no ethical obligation to the cousin unless the cousin is the client, in which case Rule 1.14 permits protective action, including seeking appointment of a conservator or guardian.

Background and rules framework

The opinion applies South Carolina Rule 1.6 (confidentiality), including Rule 1.6(b)(1), (b)(3), and (b)(7), Rule 1.9 (use of a former or prospective client's information), Rule 1.14 (client with diminished capacity; protective action), and Rule 1.18 (duties to prospective clients). These correspond to the like-numbered Model Rules. The analysis turns on the unresolved identity of the client among the relatives and the incapacitated cousin.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / SC Rule 1.6, 1.6(b)(1), 1.6(b)(3), 1.6(b)(7) (confidentiality; permissive disclosure to prevent a crime against or fraud injuring the person; disclosure to comply with other law)
• MR 1.14 / SC Rule 1.14 (client with diminished capacity; protective action)
• MR 1.18 / SC Rule 1.18 (duties to prospective clients)
• MR 1.9 / SC Rule 1.9 (use or revelation of a former or prospective client's information)

See also

• SC Bar Ethics Op. 06-06: A Client With Dementia
• SC Bar Ethics Op. 05-11: File of an Incapacitated Client
• SC Bar Ethics Op. 03-12: Confidences From a Consult

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-08-09/
• Original PDF: https://www.scbar.org/media/ardpi1cm/08-09.pdf

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 08-09

SC Rules of Professional Conduct: 1.6, 1.9, 1.14, 1.18

Facts

Lawyer received call from A requesting an appointment to discuss cousin (“Cousin”) whom A informed Lawyer’s staff was mentally deficient. Cousin is an only child, and Cousin’s mother and father, both deceased, owned property at their deaths. Cousin’s mother’s estate had been probated, and the property was conveyed to Cousin and Cousin’s father by deed of distribution. Cousin’s father’s estate had not been probated. Lawyer researched records and confirmed property ownership and estate status. A brought Cousin’s aunt (“Aunt B”) and uncle (“Uncle”) to the appointment. A explained that Cousin is mentally incapacitated; however, there has never been a judicial determination of such. Cousin receives Medicaid and Veterans Administration benefits and has no brothers or sisters. Cousin’s aunt (“Aunt C”) acts as caretaker of Cousin, paying bills, property taxes and generally looking after Cousin. Aunt C is elderly and is concerned about Cousin in the event of her death; however, she did not attend the appointment.

Lawyer gave advice to A, Aunt B and Uncle concerning Cousin and how to protect his interests: appointment of conservator, probating of father’s estate and sale of property for Cousin’s benefit; however, Lawyer has reason to believe A was not receptive to such advice. Lawyer refused to participate since he has reason to believe that A, Aunt B and Uncle are intending to transfer Cousin’s property without consideration of Cousin’s best interests.

Questions

Is Lawyer prohibited from reporting this matter to the Department of Social Services or the appropriate protective service entity?

Who is Lawyer’s client, if anyone?

What are Lawyer’s obligations, if any, to Cousin?

Summary

Ordinarily, a Lawyer has a duty of confidentiality to clients. Under these circumstances, however, Lawyer is not prohibited from reporting the matter to the Department of Social Services or the appropriate protective service entity. The determination of who may be the client is a matter of law that the Committee declines to determine. However, regardless of which party may be a client, the result does not change. The Lawyer has no ethical obligation to Cousin unless Cousin is the client, in which case, the Lawyer again may take appropriate action including reporting the matter to the Department of Social Services or the appropriate protective service entity.

Opinion

While the Committee believes that the determination of who may be a client is a matter of law, the analysis of which Rules may apply to this matter require such a determination. There appear to be four potential clients: A, Cousin, Uncle, and Aunt C. It appears from the facts that Aunt B only attended the meeting as a related party and without any intention to establish any relationship with Lawyer. If A or Uncle is intended to be the client, one must look first to Rule 1.18 regarding duties to prospective clients. Lawyer engaged in discussions with A and Uncle subsequent to research into the property and estate matters related to Cousin. The Lawyer anticipated the meeting to result in a client-lawyer relationship. A’s request to meet may indicate A’s anticipation that a client-lawyer relationship resulted from the meeting, and Uncle’s presence at the meeting and indication of a desire to have Cousin’s property transferred to him may indicate Uncle’s anticipation that a client-lawyer relationship resulted from the meeting. Paragraph (b) provides that even if no client-lawyer relationship is formed, the lawyer may not use or reveal information learned in the consultation except as Rule 1.9 permits. Rule 1.9 would permit Lawyer to reveal information learned from A and Uncle as the Rules would permit or require, or if the information becomes generally known. Rule 1.6 addresses when a lawyer may reveal information relating to the representation of a client.

If Aunt C is intended to be the client, Rule 1.18 would not apply since Aunt C did not attend the meeting nor have any contact with Lawyer and therefore neither Aunt C nor Lawyer can have a reasonable expectation of a client-lawyer relationship. Rule 1.6 would then be applicable in determining whether the information obtained relating to the relationship of a client may be revealed.

If Cousin is intended to be the client, Rule 1.18 again would not apply since neither Cousin nor Aunt C, who could possibly be held as being able to act on behalf of Cousin, attended the meeting or had any contact with Lawyer. Cousin therefore cannot have a reasonable expectation of a client-lawyer relationship. If, however, Cousin is determined to be the client, Rule 1.14 is helpful to Lawyer. Lawyer is permitted to take protective action to insure Cousin is protected from “substantial…financial or other harm.” Such protective action according to Rule 1.14(b) includes “consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.” Comments to Rule 1.14 indicate that the fact that the information was obtained from A, Aunt B and Uncle does not diminish the client-lawyer relationship if one exists Rule 1.6 would then be looked at to determine whether information obtained relating to the relationship of a client may be revealed.

Rule 1.6 prohibits Lawyer from revealing information relating to the representation of a client unless the client consents, disclosure is impliedly authorized or disclosure is permitted by Rule 1.6(b). The presented facts do not indicate that A or Uncle would consent to disclosure of the information nor would disclosure be impliedly authorized in order to carry out the representation of A or Uncle. The facts do not indicate whether Aunt C or Cousin would consent to the disclosure, however, if Aunt C is actually acting in the best interests of Cousin, disclosure could be impliedly authorized since it would be necessary to protect Cousin’s interests. If Cousin is the client, Rule 1.14 gives authorization; if Rule 1.14 did not apply, Rule 1.6 could allow disclosure based on implied authorization since it would be necessary to protect Cousin’s interests. If disclosure was not consented to or impliedly authorized by A, Uncle or Aunt C, Lawyer may still disclose the information under paragraph (b). Subsections (1) and (3) may allow Lawyer to disclose regardless of the identity of the client. These subsections allow Lawyer to disclose information “to the extent the lawyer reasonably believes necessary” to prevent A, Uncle or Aunt C from committing a criminal act against Cousin or to prevent A, Uncle or Aunt C from committing a crime or fraud that results in “substantial injury to the financial interests or property” of Cousin. The latter provision requires that the crime or fraud be committed in “furtherance of which the client has used or is using the lawyer’s services.” If A, Uncle or Aunt C utilized Lawyer’s services to effect the property transfer, Lawyer may disclose under Rule 1.6(b)(3). Since Lawyer declined to participate in the transfer, Lawyer should look to Rule 1.6(b)(1) as the means to disclose.

Regardless of the identity of the client, Lawyer may disclose the information obtained relating to the potential harm to Cousin’s interests; however, there is no ethical duty or requirement to disclose same. This opinion does not take into consideration any potential reporting requirements imposed by other law. If, however, any other law requires or permits Lawyer to disclosure the information, Rule 1.6(b)(7) permits the disclosure in compliance with law.