Ethics Opinions

Opinion 2004-1

Summary: A lawyer discharged by a client should normally turn over the client’s file to a new attorney when requested to do so. When circumstances indicate that the client may not have had the capacity to make an adequately considered decision to discharge the lawyer, the lawyer should take further steps to ascertain whether the discharge represents the client’s real wishes. Moreover, if the lawyer concludes that the client did not have such capacity and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise, the lawyer may consult with family members in order to protect the client’s interests and may disclose confidential information of the client to family members, but only to the extent necessary to protect client’s interests.

Facts: Lawyer has represented an elderly client (“Client”) for several years. One of Client’s children lives with him. Over the years, Client told Lawyer that his child was domineering and referred to Client as incompetent. Lawyer does not believe that Client is incompetent, but Client has been worried that the child would try to obtain appointment as a fiduciary for him, and would use the position for the child’s own benefit. At his request, Lawyer prepared and Client signed documents giving his other children a health care proxy and a general power of attorney. Lawyer also prepared wills leaving a substantial portion of Client’s estate to the other children.

Client has, however, been very reluctant to stand up to his resident child, who has a problem with alcohol and on some occasions has been verbally abusive to the Client. From time to time, Client has expressed concern for his safety. Lawyer has discussed with Client whether to seek a restraining order or to try to evict the child, but Client took no action. Client told Lawyer that he did not want his child to know about his consultations with Lawyer. At Client’s request, Lawyer sent all correspondence to him through a friend. When Lawyer called Client, Client would return the call from a friend’s house.

Recently, however, the resident child scheduled a meeting with Lawyer and Client. After consulting Client separately and obtaining his permission, Lawyer met with Client and child together. During the meeting, the child learned that Lawyer had been acting as his father’s attorney, and that he had previously asked lawyer not to inform the child. Lawyer also spoke privately with Client who confirmed that he did not want his resident child to be in charge of anything and expressed continued confidence in Lawyer.

Several days after the meeting, Lawyer received a fax of a letter, signed by Client, discharging Lawyer and instructing Lawyer to turn over all files to a new attorney. Lawyer tried to telephone Client to confirm his instructions, but the call was intercepted by someone who refused to identify himself and refused to let Lawyer speak to Client. Thereafter, Lawyer received a letter from another attorney who claims to represent Client and who forbade Lawyer to contact Client.

Discussion: Lawyer asks two questions. The first is whether Lawyer must turn over the file to the new attorney. A client has the right to discharge an attorney for any reason or no reason at all. See Mass. R. Prof. C. 1.16(a)(3). Assuming that the discharged attorney has been paid for his work, Lawyer is normally obligated to deliver the file to successor counsel as instructed by the client. See Mass. R. Prov. C. 1.16(e).

In this case, however, Lawyer has a reasonable basis for believing that Client does not want to discharge Lawyer and that he signed the letter firing Lawyer because he is afraid of his child and does not want to make that child angry. Given these circumstances, Lawyer should satisfy himself that Client has freely decided to terminate the representation and to hire another lawyer. Since another lawyer now claims to represent Client, one appropriate procedure is to write to the new attorney and ask for a private meeting between Lawyer and Client to confirm his instructions.

The second question is whether Lawyer may notify Client’s other children about the recent developments. Rule 1.6, Mass. R. Prof. C. provides that a lawyer should not reveal confidential information about a representation except in the circumstances described in Rule 1.6(b). Mass. R. Civ. P. Rule 1.14, however, is also relevant. It provides:

(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) If a lawyer reasonably believes that a client has become incompetent or that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise, the lawyer may take the following action. The lawyer may consult family members, adult protective agencies, or other individuals or entities that have authority to protect the client, and, if it reasonably appears necessary, the lawyer may seek the appointment of a guardian ad litem, conservator, or a guardian, as the case may be. The lawyer may consult only those individuals or entities reasonably necessary to protect the client’s interests and may not consult any individual or entity that the lawyer believes, after reasonable inquiry, will act in a fashion adverse to the interests of the client. In taking any of these actions the lawyer may disclose confidential information of the client only to the extent necessary to protect the client’s interests.

Rule 1.14(b) gives Lawyer discretion to disclose confidential information of Client to family members even if Lawyer believes Client is competent in situations where a normal client-lawyer relationship cannot be maintained as provided in Rule 1.14(a) because Client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, and if Lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise.

While Lawyer believes the Client is generally competent, Lawyer knows that he is afraid of his resident child and has in the past gone to considerable lengths to avoid angering that child. The instructions communicated by fax and the refusal of a third party to permit conversation between Lawyer and Client suggest that the capacity of the Client to make and communicate decisions has been overborne. Thus, the Committee believes that Lawyer has a reasonable basis for believing that, now that the resident child knows that Client retained Lawyer, Client’s fear of that child prevents him from making adequately considered decisions in connection with the matters about which he consulted Lawyer. Moreover, Lawyer also has a reasonable basis for believing that the Client is at risk of substantial harm: it appears that the resident child is taking charge of Client’s property and his life, precisely what he wanted to prevent when he retained Lawyer.

The Committee therefore concludes that Rule 1.14 permits Lawyer to contact the other children to inform them of what would otherwise be confidential information — the recent meeting with Client and resident child, the subsequent events, and the basis for the fear that Client is unable to make adequately considered decisions about his financial affairs and the conduct of his life.

Rule 1.14 is a limited exception to the general rule that a lawyer is an agent who should abide by his client’s decisions. Rule 1.14(b) permits disclosure of confidential client information “only to the extent necessary to protect the client’s interest.” Lawyer should, therefore, disclose only information that the other children need to know to protect Client’s interest. It would also be prudent to refer them to another attorney for advice about what steps they can take to protect their father.

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on January 22, 2004.

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