I. Introduction
This article on NAELA’s 2017 Aspirational Standard E, Confidentiality, begins with a summary of ABA Model Rule of Professional Conduct 1.6, Confidentiality of Information, as its foundation, followed by a brief comparison of the first NAELA Confidentiality Aspirational Standard (Standard C), published in 2005, and the revised Standard (Standard E), published in 2017. The summary and comparison direct the remainder of the article, focusing on several sections of the 2005 Standard that were revised for 2017 and providing case studies and instructive analysis. The article contains information on the protection of clients’ confidential information when new technologies and social media applications are used, a topic the NAELA Aspirational Standards do not address.
II. Revised ABA Model Rule of Professional Conduct 1.6 — Confidentiality of InformationModel Rule 1.6 appears in the next three sections, II(A), (B), and (C).
A. The Mandatory Prohibition
(a) A lawyer shall not reveal information relating to the representation of a client …
B. The Narrow Exceptions and Expressed Waiver
unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation …
C. The Discretionary Exceptions That Allow Disclosure
or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) 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;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
D. The Mandate of Reasonable Efforts
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
III. Comparing the 2005 and 2017 NAELA Confidentiality Aspirational Standards
A. 2005 Standard (see side-by-side comparison on following page)
B. 2017 Standard (see side-by-side comparison on next page)
C. Differences Between Standards
Sections 1, 2, and 3 of the 2005 Confidentiality Aspirational Standard are practically identical to Sections 1, 3, and 4 of the 2017 Standard, except for nuanced word changes. One example is shown in the minor wordsmithing of Section 1 of the 2005 Standard, in which “client and involved parties” is replaced in the 2017 Standard with “client and others involved.” Throughout the revision process, the NAELA Professionalism and Ethics Committee focused on when a client or other party should be identified. This issue is most apparent during an examination of the initial intake, or initial consult, when the question “Who is the client?” is answered.
Once the client is identified for the initial consult or future engagement, there may not be identification of “other involved parties” but rather identification of “others involved” in the initial consult or in future engagement with the client. Identifying “involved parties” expressly confirms an attorney-client relationship with those parties even if no relationship exists. Using the phrase “involved parties” also infers that all confidences will be shared with the parties. Using the phrase “others involved” confirms that other individuals are identified but stops short of granting them equal status in the attorney-client relationship that early in the representation.
Another difference is Section 3 of the 2017 Standard, which is almost identical to Section 2 of the 2005 Standard, in which the prerequisites of multiple client relationships are delineated. However, the 2017 Standard adds a new Section 2, with a specific instruction that the lawyer should explain the application of the confidentiality rules to various forms of representation.
Finally, the 2017 Standard adds Section 5, stating that the lawyer should maintain and exercise the person-centered principle that directs him or her to ascertain from the client those with whom confidences should be shared, and Section 6, reasserting that the lawyer must protect the core value of confidentiality “to the extent possible” while acknowledging that there are other laws, rules, and court orders that may require disclosure.
IV. Examining the 2017 NAELA Confidentiality Aspirational Standard (Standard E)
In this section of the article, the 2017 NAELA Confidentiality Aspirational Standard (Standard E) Sections and their Comments are applied to case studies focused on that which is aspirational, expanding the habits practiced by elder and special needs law attorneys. It also contains a brief review of Model Rule 1.6(c).
A. Section 1 — Confidentiality Explained as Early as Possible in the Representation
1. The Mandatory Prohibition of ABA Model Rule 1.6
When the first edition of NAELA’s Aspirational Standards was published in 2005, the priority regarding confidentiality focused on avoiding the client’s misunderstanding of the attorney’s duty under ABA Model Rule 1.6. The imperative was for the elder and special needs law attorney to educate the client on how confidentiality would be applied in the attorney-client relationship.
Although the black letter of the 2017 Standard is no different from that of the 2005 Standard, the 2017 Standard, Section 1, Comment, emphasizes how Model Rule 1.6 is direct and unequivocal, exhorting attorneys to understand that the “strong protection” of the core value of confidentiality is that “all” information “relating to” an attorney’s relationship with a client is presumptively confidential and must not be disclosed without meeting an exception. Restatement (Third) of the Law Governing Lawyers describes the mandate as the first duty of confidentiality, framed in the negative. Although the second duty, framed in the positive, expressly modifies the first duty as it relates to client safeguards and the third duty expressly directs client protections, the first duty is of such high value that it is not modified and lawyers must obey it even to the detriment of others and to the limitation of their own rights of free speech under the First Amendment.
The following case study is an expanded version of the case study Example in Section 1, Comment. The expanded case study adds a prologue and epilogue that illustrate the application of that which is aspirational beyond Model Rule 1.6.
2. Expanded Case Study
a. Prologue
Attorney has known wife, her husband, and children for many years; attorney attends the same church and is considered a good friend. Wife makes an appointment to see attorney for asset preservation planning. As a habit of practice of attorney’s firm, wife is sent an intake and appointment questionnaire that includes a concise explanation of attorney’s duty of confidentiality. Attorney and her firm believe that the importance of this ethical duty must be communicated at the beginning of any prospective client relationship. One question on the questionnaire asks wife to designate those with whom attorney may share confidences.
Wife sends the questionnaire back in advance of the initial appointment declaring that there is no one with whom attorney is allowed to disclose confidential information. Unaware of recent family dynamics, attorney directs firm intake coordinator to call wife to suggest that confidences be shared with husband and children in order to maintain open dialogue and transparency in the months and years to come and to explain that attorney will discuss this at the time of the initial appointment. Wife is taken aback by the advice given, cancels the appointment, and plans to meet with a different attorney.
b. Applying the Mandatory Prohibition
Attorney calls wife to ask why the appointment was cancelled. Wife declares that attorney was to represent her only. Wife goes on to explain that (a) her husband was diagnosed with Alzheimer’s disease several years earlier and had declined drastically in the past year; (b) wife and husband saw another attorney a year earlier, executing advance directives and mirror wills; (c) while acting as husband’s attorney-in-fact, wife transferred all assets out of husband’s name into her name only; (d) attorney is to create a new will for her, without husband as devisee and instead including her nonmarital child, who is unknown to husband and children; (e) she has placed husband in an assisted living facility over his objection without informing their children; and (f) she has a domestic relations attorney proceeding through divorce.
Attorney assures wife of her loyalty to wife as client and that attorney will adhere to keeping all information related to the attorney-client relationship confidential. A legal services agreement is executed that includes this prohibition against disclosure of wife’s confidential information, specifically mentioning husband and children. Attorney begins providing the asset preservation planning legal services as wife has contracted.
c. Epilogue
Because of gossip in the community, wife’s children approach attorney at church, begging for information about what is going on with their mother and wanting to know where their father is. Attorney despairs over children’s anguish, knowing that the information she received from wife could ease their troubles and anxieties and bring them a degree of comfort. Attorney takes them aside and tells them what she knows but insists that they cannot tell anyone how they obtained the information.
3. Analysis — Beyond the Mandatory Prohibition to That Which Is Aspirational
The case study first presents how attorney shares information about confidentiality as early as possible. This is an example of the aspirational reach of the Confidentiality Aspirational Standard. Often, the subject of confidentiality is raised in the initial appointment and might be included in the legal services agreement. However, some attorneys never bring up the subject and assume that it is understood by the clients.
To be sure, the case study is simple and the analysis easy because there is only one client. Attorney has no duty to husband or children, only a duty of loyalty to wife. No matter how much the information would help husband and children, attorney must maintain wife’s secrets because these facts do not rise to a level warranting attorney’s exercise of discretion under Model Rule 1.6(b). On the contrary, wife has specifically instructed otherwise. Attorney must honor his duty of loyalty to his only client.
The Analysis of the case study describes one way elder and special needs law attorneys can do more than what is required by ethics rules across the states. Attorneys might also consider offering a handout or brochure that more thoroughly explains their duty to protect confidentiality. As for how attorney might approach wife, attorney should consider exercising her position as “counselor at law” by sharing with wife ways in which attorney might develop a person-centered plan for husband and seek wife’s waiver of confidentiality to include children and calm their fears without defeating wife’s goals. Attorney might also impress on wife that no matter how much wife wants all confidences maintained, keeping children uninformed could create a heightened adversarial situation in which children hire their own attorney to intervene. It is important for wife to know that such a rigid, controlling position could end up immersing her in time-consuming and expensive litigation and that she could lose any relationship she may have with her children for the rest of her life.
That said, in this case study, attorney has already been informed by wife that she has had at least two other attorneys engaged for specific legal services (estate planning and divorce). Attorney already faced the risk of wife terminating the attorney-client engagement because if wife had wanted to involve the children, she would have included them. There will be times in which the client will consider the attorney paternalistic and the advice given as condescending while the attorney exercises what he or she believes to be necessary steps of discussion as counselor at law.
The epilogue is problematic. Attorney breached her duty to wife. Attorney may later defend her position as a matter of faith, family friendship, or risk of harm. Of course, none of these considerations rise to a level at which attorney may exercise her discretion and apply one of the exceptions to Model Rule 1.6.
B. Section 2 — Confidentiality Explained When Applied to Different Forms of Representation
1. The Mandatory Prohibition Beyond a Single Client to Joint Clients and Nonclients
Section 2 addresses different forms of representation and various forms of relationships, including those involving nonclients. In the case study Example in Section 2, Comment, although Mr. A’s daughter is not identified as a co-client, Mr. A wants attorney to communicate with his daughter. Client identity and sharing of confidences is memorialized in an executed engagement agreement. The Comment goes beyond Model Rule 1.6 by explaining how attorney should communicate all of this not only to Mr. A but also to his daughter. It also suggests that daughter should be told to consider obtaining legal advice from her own attorney regarding her rights and affairs.
2. Expanded Case Study
a. Expanding Client Relationships
Attorney represented Mr. A for many years. Often, daughter attended appointments with him. Recently, daughter contacted attorney’s paralegal assigned to Mr. A’s case, explaining that Mr. A gets distraught when having to think about his legal affairs and that his anxiety had become even worse since he realized that he must leave his home and move into an assisted living facility. Daughter wanted the legal work finished without Mr. A’s involvement to alleviate his anxiety and stress. Since most of the legal work to be done included daughter, she told paralegal that she was to be considered a joint client with Mr. A since there were no conflicts between them. Paralegal told attorney, who agreed with daughter, realizing Mr. A’s close relationship with his daughter and how trusting he was of her in their previous meeting and assuming that there was implied authority.
Several days later, daughter’s husband contacted paralegal and stated that he was going to be more involved and that daughter wanted him to meet with paralegal in a separate meeting to discuss sensitive information that husband did not want divulged to Mr. A because of Mr. A’s condition. Paralegal assumed there was implied authority to meet with husband without saying anything to attorney, believing it was not a problem. Husband asked many questions about Mr. A that paralegal answered based on what was in Mr. A’s file even though the information was confidential. After all was said, husband made it clear that he would not let Mr. A’s money be wasted on the cost of Mr. A’s long-term care and instructed paralegal to prepare significant asset transfers from Mr. A to daughter that husband would manage. Paralegal simply said attorney would get back to husband.
Realizing that she may have gone too far, paralegal met with attorney and explained what happened with husband in the meeting. Attorney immediately gave notice to daughter and husband that there needed to be a meeting with them, Mr. A, and attorney in order for attorney to re-establish and clarify the client relationships and to have a careful and detailed discussion about the ethical requirements related to confidentiality when possible conflicts were presenting and when there was a possible joint client relationship and a nonclient involved.
b. Epilogue: All’s Well That Ends Well, or Did It? Two Alternative Scenarios
i. Alternative Scenario 1 — All in Agreement? or So It Seemed
When Mr. A, daughter, and husband met with attorney, daughter carefully explained how the initial attorney-client relationship had been established with Mr. A. It was Mr. A who expressly waived confidentiality as to daughter. However, with daughter establishing herself as a joint client and husband involving himself through daughter, attorney worried that joining daughter as a client and divulging confidential information to husband might not have been necessary to carry out Mr. A’s representation, thereby going beyond that which was impliedly authorized for the purpose of the attorney-client engagement.
Mr. A. was not fully engaged in the discussion, deferring to daughter, who did all the talking. This became more evident when attorney asked Mr. A if he agreed that daughter was a joint client and that confidences could be shared with husband. Daughter assured attorney that Mr. A agreed with her, and Mr. A sheepishly nodded approvingly. Attorney left it at that.
ii. Alternative Scenario 2 — Attorney’s Aspirational Advocacy
Before the meeting, attorney went to Mr. A’s home to visit one-on-one with Mr. A. While Mr. A seemed to remember who attorney was, he was somewhat confused and anxious, much like daughter had described. Attorney softened the conversation to questions about Mr. A’s life and things and events that shaped his beliefs and his legacy. As time passed, Mr. A calmed down and began answering questions accurately, becoming fully engaged with attorney. Attorney carefully moved the discussion to what daughter and husband were doing. Mr. A said that he understood all too well; he never really liked husband and thought he was a freeloader and spendthrift. Mr. A said that even though he loved daughter and knew she loved him, he was sure that she would do whatever husband wanted. Attorney offered suggestions for how Mr. A should handle the situation.
When Mr. A, daughter, husband, and attorney met, Mr. A was having a good day. He was lucid and clear thinking from the very beginning of the meeting and understood well what had happened, what he had decided earlier with attorney, and what attorney was explaining. Mr. A even started asking husband pointed questions to confirm what Mr. A had suspected for many years. The more Mr. A heard from husband, the more he expressed his distrust and disdain for him. He declared to attorney that only Mr. A was the client, information would only be shared with daughter, and nothing was to be shared with husband. Mr. A ended the meeting by instructing attorney to create a trust to protect his legacy for his daughter and grandchildren, ensuring that husband would never manage or have access to the trust funds.
3. Analysis — Re-establishing Client Identification and Confidentiality Requirements
The case study Example in Section 2, Comment, was expanded to add a possible joint client relationship, involvement by a nonclient, and involvement by attorney’s paralegal. As time passes with current clients, situations in which attorneys provide legal services may change the attorney-client relationship incrementally in ways that slowly create competing interests and misunderstandings as to who the client is and for whom confidences are to be protected. Attorney responded as was minimally appropriate in the first scenario and went beyond that which was necessary in the second scenario.
As indicated in the expanded case study, attorney could not be sure of Mr. A’s physical and mental competence until she exercised due diligence with Mr. A to determine whether he had sufficient capacity to exercise informed consent in joining daughter as a joint client and in allowing confidential information to be shared with husband.
It may be that daughter led attorney to believe that she had implied authorization under Model Rule 1.6 to share Mr. A’s confidential information with husband. It was also a concern that Mr. A’s capacity had diminished to such extent that he was unable to make informed decisions or that he was being unduly influenced.
In the first alternative scenario epilogue, attorney may have been witnessing Mr. A’s lack of capacity and daughter’s undue influence of Mr. A throughout the meeting.
a. Implied Authorization Under Model Rule 1.6
Permission to divulge a client’s confidential information may come simply because it is the only way an attorney is able to accomplish the legal services for which attorney is engaged. This application of ABA Model Rule 1.6 is consistent with other Model Rules.
What is clearly necessary to advance the representation of a client is described as facts “that cannot properly be disputed” or “a disclosure that facilitates a satisfactory conclusion to a matter.” When a client lacks informed consent, there are limits to what the attorney can disclose. It depends on “the particular circumstances of the representation.” A 2008 ABA Formal Ethics Opinion declared that if informed consent is lacking, harmful disclosures to a joint client cannot be revealed by the attorney. While attorney in the first alternative scenario epilogue did not disclose Mr. A’s confidential information, she had to decide whether Mr. A had sufficient informed consent to allow what daughter and husband were doing. Attorney’s acquiescence or indifference at the end of the meeting may not have violated Model Rule 1.6, but attorney’s representation seems lacking just the same.
b. Informed Consent and Diminished Capacity Under Model Rule 1.6
The tension between implied authorization and informed consent is illustrated in the facts of the alternative scenarios presented in the epilogue. In the first scenario, attorney was unable to clarify that she had implied authorization to proceed with daughter as joint client and to allow Mr. A’s confidential information to be shared with husband. In the second scenario, without implied authorization, attorney had to determine whether Mr. A had capacity to exercise informed consent.
In 2002, ABA amended the Model Rules to provide a global definition of “informed consent.” This has strengthened the way in which a measure of the lawyer’s counsel relating to the client’s understanding of confidentiality and consent may be found to be sufficient or lacking. In the guidance in Restatement (Third) of the Law Governing Lawyers, Section 62, which is expressly tied to the global declarations of Section 60, the analysis focuses on the lawyer’s duty to the client compared with any duty that may arise to joint clients or nonclients. Under the first scenario, Mr. A presented an inability to exercise informed consent because of his lack of capacity, while daughter simultaneously intervened to impress her choices to the extent that she unduly influenced Mr. A’s decisions. Attorney should have applied her duty under Model Rule 1.14 relating to clients with diminished capacity. Under that Rule, attorney could have taken action that protected Mr. A from the outcomes pursued by daughter that were inconsistent with those of Mr. A.
Under the second scenario, attorney went beyond the primary ethical boundaries that bind the legal profession. In that extra effort to advocate for Mr. A, attorney exercised the principle of person-centered planning to assure herself of what Mr. A’s wants and goals were for his life and not be misdirected by daughter and husband. Attorney’s separate meeting with Mr. A assessed Mr. A’s ability to make decisions that were based on sufficient mental ability to make decisions that impacted his financial and personal choices. What he discussed with attorney was also unencumbered by the daughter’s oppressive influence dictated by her overbearing husband.
C. Section 3 — Confidentiality’s Prerequisite of No Secrets in Joint Representation: The First Exception to Model Rule 1.6
In joint and multiple representations, clients often expressly waive confidentiality as to each co-client or specifically authorize the elder and special needs law attorney to divulge or disclose confidential information the attorney receives during representation that is related to the subject of the representation. This is the first of the narrowly defined exceptions to the Model Rule 1.6 confidentiality mandate.
1. Case Study Example 1
Case study Example 1 in Section 3, Comment, follows:
An attorney is engaged to prepare estate planning documents and develop an asset preservation plan for a husband and wife.[]
The initial consultation and engagement agreement fail to provide for the sharing of confidential information between the spouses. During the representation, the wife tells the attorney that she has a child unknown to her husband to whom she plans to divert a portion of the couple’s assets and directs the attorney not to disclose this to her husband. Because the information is relevant to the representation of the husband, the attorney should tell the wife that this information must be disclosed to the husband or the attorney must withdraw. The attorney may have avoided this situation had the sharing of confidential information been explained at the beginning of the representation.
a. Analysis — Beyond Model Rule 1.6 to That Which Is Aspirational
The Comment in Section 3 makes it a prerequisite that clients be instructed both on the attorney’s obligation to disclose information received from one joint client to another joint client and on the consequences of such disclosure. Elder and special needs law attorneys are led to believe that part of the process is to create a written engagement agreement in which it is made clear that the attorney can keep no secrets that relate to the subject of the engagement. However, written engagement agreements are only required in limited situations, and this is not one of them. This is one of those clear expansions of the ABA Model Rules of Professional Conduct and most states’ ethics rules. Elder and special needs law attorneys should make clear to clients their obligation to keep no secrets. In situations such as these, attorneys are confronted with the option of either being allowed to disclose information or withdrawing from the representation.
A nuance to disclosing or withdrawing under this “undisclosed secrets” component appears in the “subject to the representation” aspect. If the secret has no detrimental impact on the other client, the attorney may not need to disclose the secret.
2. Expanded Case Study Example 1
Wife explained to attorney that the portion of the couple’s assets that she was diverting to the child unknown to husband were her assets and that she had directed in her estate plan that those funds were going to a charity and were never going to benefit her husband. She reminded attorney that husband was aware of this because he had fully participated in their joint estate planning with the estate planning attorney.
a. Analysis — Beyond Model Rule 1.6 to That Which Is Aspirational
This twist is taken from the fact pattern developed in Restatement (Third) of the Law Governing Lawyers. If the joint clients have no agreement about keeping secrets, the Restatement concludes that the attorney has wiggle room to assist wife to establish and fund the trust and refrain from disclosing wife’s information to husband since it will not materially affect him.
This is a noteworthy difference from the “attorney should” aspiration directing elder and special needs law attorneys to insist on disclosure — no matter what — or withdraw from the representation.
3. Flipping the Facts in Case Study Example 1
Wife told attorney an elaborate story, blaming husband for her having child unknown by husband with another lover. She explained to attorney that she had already made substantial transfers out of joint accounts into her separate revocable trust for which the child is sole beneficiary, and there was no way that husband would be determined a contingent beneficiary of or in any way benefit from that trust. Husband had been designated the primary beneficiary of the couple’s assets to ensure that he would have a higher quality of life. What wife did puts husband at probable risk of being impoverished later in life if he outlives her.
a. Analysis
The following twist of the facts in the case study renders a different conclusion. It is also taken from Restatement (Third) of the Law Governing Lawyers.
If [wife] refuses to inform [husband], or to permit attorney to do so, attorney must withdraw from representing both wife and husband. In the light of all relevant circumstances, attorney may exercise discretion whether to inform [husband] either that circumstances, which attorney has been asked not to reveal, indicate that he should inform [husband] of some or all of the details that [wife] recently provided so that [husband] may protect [his] interests. Alternatively, attorney may inform [husband] only that attorney is withdrawing because [wife] will not permit disclosure of relevant information.
Assuming there is no detriment to the other joint client, if the attorney obtains information from one joint client who is unknown to the other joint client and the attorney fails to persuade the client to share the information with the other joint client, the attorney either should share the information with the joint client or withdraw from the representation. The attorney need not explain the reason for the withdrawal. State rules of professional conduct vary widely on joint client confidentiality, and the attorney should act in accordance with those state rules. This may or may not lead the attorney to the choice of making a noisy withdrawal.
4. Beyond Section 3, Comment, to That Which Is Aspirational
Because the joint clients (husband and wife) expressly waived the bar of confidentiality as to each other, the resolution seems to be that wife should not be able to have the court enjoin or the state bar deny the attorney from disclosing to husband that there is a child unknown to him, although prudence would dictate not disclosing child’s name or whereabouts.
Immediately after describing the possible courses of action set out here, the American College of Trust and Estate Counsel (ACTEC) Commentaries offer an example in which one party divulges marital infidelity to the lawyer with no obvious current or future detriment to the other party, as illustrated in the example above. The ACTEC Commentaries suggest that the lawyer may conclude that the information need not be communicated to the other client.
There is another resolution, however, which is found in the action taken in A v. B, in which the attorney sought guidance and direction from the court. In client situations such as this, the elder and special needs law attorney should consider seeking clarification and direction from the court or the state bar.
D. Section 4 — Confidentiality Preserved Especially Among Family Members, Caregivers, and Trusted Third Parties
1. Expanded Case Study Example
In an expanded version of the case study Example in Section 4, Comment, father makes an appointment with attorney on behalf of 27-year-old son, who has had cerebral palsy all his life. Despite moderate physical and mental challenges, son has capacity. Son comes to the appointment accompanied by mother and father, who have managed son’s finances and provided caregiving and case management support for him. Parents pay attorney’s fee for the consult and agree to pay attorney for any future representation of son. Regardless of the many aspects of their lives being intertwined, all agree that son is the sole client, and it is understood that attorney may not disclose son’s confidential information to mother and father without son’s consent, unless otherwise authorized by son.
a. Analysis — Within the Four Corners of Section 4, Comment
The Comment in Section 4 makes it clear how family members, although declared nonclients in an initial consult, may also be providing son with necessary support. The Comment acknowledges that when such involvement is extensive, the parents may have an expectation that attorney represents son and them jointly. The Comment declares the duty of attorney to ensure that parents understand that they are not clients.
2. Further Expanded Case Study Example
Although attorney did explain at the initial consult that son was the only client and made clear to parents that they were not clients even though they would be paying all fees, no written attorney-client engagement agreement was executed. Attorney-client representation continued for months, and parents attended the appointments many times. However, no mention was made of attorney-client privilege, or waiver of confidentiality. In later appointments, son asked to meet attorney without parents. During the meetings, son was adamant that attorney say nothing to parents. Attorney assured son that he would not divulge any confidential information son shared with him. Days later, father called attorney wanting to know what son told attorney in those meetings without parents present. Attorney responded that son was adamant that attorney not tell them anything. Attorney asked father whether he remembered what attorney said in the first consult about son being the sole client and son being the only one who could authorize disclosure.
Father was dumbfounded. He asked mother whether that was what she remembered. She replied that when she gave attorney the check for the initial consult, attorney seemed to make clear that he would look to them for continued involvement and payment of fees. She was absolutely certain that meant that son and parents were attorney’s clients. They insisted on a meeting with attorney without son. Attorney agreed but never mentioned anything about having to share with son anything they said. During the meeting between parents and attorney, they explained how they believed attorney had simply given son the impression that he was the only client. They were adamant, animated, and emphatic that attorney, in no uncertain terms, gave them a visible wink and a nod and that what attorney said was only lip service to make son feel like he was in control. Attorney replied that the initial consult and their payment of the fee did not happen the way they described it. They were livid, and father flew into a rage, screaming, “How in the hell would we pay all of your damn attorney’s fees if we were not your clients?” As they stormed out of the office, attorney could hear mother telling father, “Of course we are the clients.”
a. Analysis — Beyond the Four Corners of Section 4, Comment
As mentioned earlier, written engagement agreements are discretionary in this area of practice. Even now, as long as attorneys meet the duty to confirm who the client is, what confidences may be shared and with whom, and how fees will be paid and by whom, a written engagement agreement is not mandatory. However, as years pass in the practice of law, an attorney’s recollection about what was said at an initial consult can become unreliable. More important, the notes, memos, and documents in the paper file, coupled with the probable dearth of such notes, memos, and documents on a computer hard drive, server, or cloud-based storage unit may not confirm what attorney thought he had agreed to with all parties.
Many state rules and the ABA Model Rules make clear that there is a presumption that if a person believes he or she is a client of an attorney, the attorney must produce credible and reliable evidence otherwise disputing this belief. The expanded case study Example makes the point. Having a written engagement agreement for every attorney-client relationship beyond an initial consult should be a standard of practice of elder and special needs law attorneys.
3. Beyond Section 4, Comment, to That Which Is Aspirational
In addition to executing a written engagement agreement, several other suggestions not only would be aspirational but would create greater security against misunderstandings about lawyering that many people have because they never met with an attorney before: The following aspirational suggestions focus on what needs to be communicated about confidentiality:
1. It is strongly advised that the attorney conduct the initial consult and present the prospective client with a printed checklist of what needs to be discussed to ensure that the attorney explains the duty of confidentiality.
2. It is suggested that a staff person also attend the initial consult, taking careful notes and making sure the attorney addresses everything in the checklist that is mandatory and should be covered during the consult.
3. Make it a policy of the firm that if the firm is engaged at the end of the consult, execute a written engagement at that time — and give a copy to the client.
4. If the attorney is engaged and a written engagement agreement is executed, prepare and send a post-consult letter that summarizes what was said in the consult: (a) who is the client and who is not; (b) what confidences may be shared and with whom; (c) what facts were discussed; (d) what laws were examined based on the facts discussed; (e) what legal options were described and which options taken as shown in the engagement agreement; and (f) what fees will be paid and how.
E. Section 5 — Ascertaining the Client’s Wishes as to Whom, if Anyone, the Attorney May Disclose Confidential Information and Explaining the Potential Consequences of Such Disclosure
1. Case Study Example
The case study Example in Section 5, Comment, states:
Mr. A signs a waiver because he wants his daughter to be aware of the planning options that he may consider. The attorney should explain to Mr. A that the disclosure of confidential information to his daughter will waive his attorney-client privilege with respect to the disclosed information and may cause additional issues regarding his attorney-client privilege.
a. Analysis — Within the Four Corners of Section 5, Comment
The Comment in Section 5 initially focuses on those narrow situations when the client makes the request for confidential information disclosure. It explains that attorneys not only should be mindful of the consequences of disclosure but also should “ensure that the client understands the possible risks and implications of such disclosure.” As part of the attorney’s explanation to the client, the Comment suggests “options regarding the type of information to be disclosed, the method of disclosure, and to whom the information will be disclosed.” When warranted by the facts and the situation in which others may be present, the attorney should mention the possibility of the attorney-client privilege being waived if the nonclient’s presence is not “necessary to assist in the representation.”
Toward the end of the Comment, it is acknowledged that attorneys or others may approach prospective or current clients seeking approval to disclose. Attorneys are directed to take the same steps as described when the request is from the client. The Comment ends with the admonition that any such release and waiver regarding the clients’ confidential information should be in writing with specificity as to whom the release and waiver is given and detailing the scope of the information to be disclosed. After the case study Example, the Comment goes on to state that attorneys should make clear that changes can occur that prompt a change in clients’ preferences, which is their right, and assure clients that consent is optional and may be revoked at any time.
2. Expanded Case Study Example
For many years attorney handled Mr. A and his wife’s estate planning until she died a year ago. Although they had two sons and a daughter, Mr. A and wife never involved them in estate planning and attorney had no prior contact with them. At a recent appointment, Mr. A surprised attorney by showing up with daughter. After pleasantries were exchanged, daughter announced that Mr. A wanted to sign a waiver because he wanted her to be aware of and involved with the estate planning options he was considering. At that point, daughter took charge of the meeting and informed attorney about changes in Mr. A’s financial and health care powers of attorney and in Mr. A’s revocable trust. Attorney attempted to slow things down, asking Mr. A and daughter to start from the beginning by discussing waiver and disclosure of Mr. A’s confidential information. Attorney asked daughter to return to the reception area while he had an attorney-client discussion with his client, Mr. A.
Daughter stared angrily at Mr. A so that he could see how upset and agitated she was at attorney’s request. Mr. A jumped up, blustering how it was his decision and not attorney’s. He insisted that daughter remain in the room because he wanted her to know and be involved with everything.
a. Analysis — Beyond Section 5, Comment, to That Which Is Aspirational
Attorney has several options:
• Attorney could explain that the circumstances have changed such that it would be in Mr. A’s interest to seek the services of another attorney. Attorney could ask that any outstanding invoice be paid and confirm that Mr. A’s files would be available (of course, not contingent on the payment of the invoice) for the newly hired attorney upon receipt of a written notice of representation and waiver executed by Mr. A.
• Attorney could conclude that Mr. A was being unduly influenced by daughter. Depending on the severity of the situation, attorney might carefully discuss the situation with Mr. A and daughter together to see if there is a way to continue representing Mr. A.
• If daughter was clearly verbally abusive to Mr. A and intimidating him, attorney could file a report with adult protective services.
• Depending on how continued discussion goes, attorney could weigh the need to contact Mr. A’s sons even if such action contravenes Mr. A’s expressed instruction not to do so.
• If attorney realizes that Mr. A is significantly diminished in his capacity to the extent that he lacks capacity to make informed choices and attorney concludes that Mr. A is at risk of personal or financial harm (depending on the state’s ethics rules), attorney could initiate a protective action to adjudicate Mr. A incompetent and have a guardian appointed.
Where in all of this does attorney become more counselor and advocate than transactional practitioner? This will be determined by his experience as an attorney and whether he practices holistically as an elder and special needs law attorney or conventionally as a transactional estate planning attorney. This does not suggest that one way of practicing law is better than another. It does suggest, however, that for elder and special needs law attorneys, there is the aspirational component articulated in all NAELA Aspirational Standards that invites NAELA members to raise the level of their legal specialty to the “true espousal” of elder and special needs law practice. Several of the options presented create an interesting segue into the concerns raised in the next part of this article.
F. Section 6 — Carefully Maintaining Client Confidentiality to the Extent Possible While Meeting Requirements of Laws, Regulations, and Court Orders Imposing a Duty to Disclose
1. Case Study
Several years ago, a special needs trust (SNT) was funded with proceeds from a personal injury case in which Bene, the plaintiff, received a settlement after suffering a traumatic brain injury. Although defined as disabled, Bene has not been declared incapacitated and, although highly intelligent, Bene has intermittent periods of delusion and confusion.
Attorney developed the SNT and represents Bene, the only SNT beneficiary; Bene’s brother is contingent beneficiary but has no knowledge of the value of the SNT assets or of Bene’s medical condition. When in rational states of mental function, Bene has insisted that his brother not know how much is in the SNT or anything about his medical history.
Trustee has accumulated large medical bills that are not part of the personal injury case but are the obligation of the SNT. Trustee needs Bene’s detailed personal information to determine whether payment is justified. Hospital sends the information as requested, which becomes a part of the SNT records. Bene’s brother has now demanded all of the SNT records from trustee. Trustee needs to know from attorney what must be given to Bene’s brother.
a. Analysis — Within the Four Corners of Section 6, Comment
No case study Examples appear in Section 6, Comment. However, the Comment describes several areas in which disclosure may be warranted if the client has not given express consent. These areas are related to the following:
• State mandatory reporting statutes for abuse or exploitation;
• Any transparency provisions in the Uniform Trust Code or other state trust laws protecting the right of trust beneficiaries to receive trust records and financial reports;
• Grantors of trusts and ensuring that the grantor is aware of competing interests between primary and contingent beneficiaries; and
• The creation of joint accounts or changing beneficiary designations for various assets, including retirement accounts, life insurance, transfer on death accounts, and other similar asset resources, including real property held in joint tenancy with right of survivorship.
The following situation is an example of tension that starts at the beginning of a representation. Attorney developed the SNT, and Bene is his client. Based on the facts available, attorney only has an attorney-client relationship with Bene. However, Bene’s SNT trustee wants to know how much to divulge to Bene’s brother. Even if Bene’s capacity deteriorates to the point that he becomes a former client, attorney has the same ethical constraints involving confidentiality and conflict of interest. Attorney may direct trustee to the expressed declarations in the SNT that address trustee’s duties of disclosure to a contingent beneficiary.
Assume attorney developed the SNT several years ago without declaring a limitation on what trustee must disclose to those who ask about information on the SNT’s operation and accountings and the SNT is silent on the rights of “qualified beneficiaries” to obtain such information. That stated, many states have ratified the Uniform Trust Code, which provides for the “duty to inform and report” when there is a request of trustee by a qualified beneficiary — and Bene’s brother is one.
Attorney may find it appropriate to inform trustee that he will contact Bene to see if Bene will agree to the disclosure by trustee. Assume as well that trustee is not an attorney and has no ethical mandate regarding disclosure of confidential SNT information. If Bene’s brother insists, regardless of what Bene or attorney instruct trustee to do, trustee is bound either by the express requirements in the SNT or by the statutory requirements of the state’s trust law.
b. Analysis — Beyond Section 6, Comment, to That Which Is Aspirational
When elder and special needs law attorneys develop SNTs, they must be sure to confirm who their client is. In personal injury litigation, many times the plaintiff’s attorney insists that he or she is the SNT attorney’s client to whom the duties of loyalty and confidentiality is owed. The plaintiff’s attorney, however, is more often focused on settlement or judgment and has no interest in the nuances of SNT development, caring little about the existence of expressly stated limitations on what the trustee is allowed or required to divulge to anyone, including qualified beneficiaries.
Were the facts above part of a current engagement for attorney, and it was made clear that Bene was the client, there should have been careful discussion with the client/primary beneficiary about what limitations should be expressly declared in the SNT.
This issue of confidentiality related to trusts, especially SNTs, was raised often in the NAELA Professionalism and Ethics Committee by Rene Lovelace, who tirelessly prodded the committee to revisit this issue as it relates to clients with special needs who need the details of their physical and mental impairments protected from unwarranted exposure and examination by those seeking information that could be used against clients’ interests.
G. Confidential Information Safeguarded Against Unauthorized Access — Acting Competently to Preserve Confidentiality
Paragraph (c) of Model Rule 1.6 was added to the black letter rule in 2012 to emphasize “the need for lawyers to protect confidential client information” in this age of advanced communications and technology. Comments 18 and 19 also were added.
One scholar suggests that although the addition of Paragraph (c) broke no new ground, it was a renewed admonition that attorneys have a positive duty to prevent inadvertent disclosures that may occur during the general transmission and storage of electronic communications, including by cell phone, email, metadata transfer, virtual law offices, social networks, blogging, texting, bulletin boards, chatrooms, online discussion groups, and cloud storage.
1. Case Study — Beyond Standard E, Confidentiality, to the Boundaries in Model Rule 1.6(c)
Attorney with advanced skills in the use of current technologies leaves a larger firm to start her own. She wants to rid herself of the arcane habits of practice that the other firm continually relied on, including duplicating paper files and relying on outdated computer servers. She was eager to move into software as a service (SaaS) (cloud computing) and chose Head in the Clouds, a vendor that exhibited at the state bar convention, whose representatives assured her that several thousand members of the bar were subscribers and that the vendor had been operating for more than 10 years.
Attorney asked several other subscribers about Head in the Clouds and received strong recommendations, which was consistent with the rating she found by a technology rating service.
It took months to get SaaS package up and running, which was expected, and attorney struggled to handle the client matters she had taken with her from the other firm. After the package was operational, attorney was confronted with one problem after another, often finding it difficult to get a response from Head in the Clouds. After 8 months of challenges, attorney went to the office one morning to find that everything being serviced by Head in the Clouds had been invaded and compromised by unknown hackers. All of attorney’s confidential client information was in the hands of unknown third parties. To make matters worse, Head in the Clouds sent an email message that the hackers were demanding a ransom for the return of all files stored for the thousands of Head in the Clouds attorney subscribers. Head in Clouds immediately ceased business operations and filed for bankruptcy. Attorney lost access to all of her client files and information.
Assuming that the assurances from Head in the Clouds was protection enough, attorney never took additional protections or created added redundancy in the storage of her client files and the law firm’s operations.
a. Analysis — Within the Four Corners of Model Rule 1.6(c) and its Comments 18 and 19
The inquiry to the state bar from which this case study was derived notes, “Lawyers have duties to safeguard confidential client information, including protecting that information from unauthorized disclosure, and to protect client property from destruction, degradation, or loss (whether from system failure, natural disaster, or dissolution of a vendor’s business).” It was also stated that lawyers have a continuing need to retrieve client data in a form that is usable outside a vendor’s product.
The obvious failure by attorney to safeguard her confidential client information was a breach of duty to her clients. In the ethics opinion, there was a clear admonition that a SaaS package can be used by a law firm as long as “steps are taken to minimize the risk of inadvertent or unauthorized disclosure of confidential client information and to protect client property … from risk of loss.” Attorney did not meet the mandate of Model Rule 1.6, much less exercise her responsibilities beyond the Rule to that which is aspirational.
b. Analysis — Beyond the Four Corners of Model Rule 1.6(c) to That Which Is Aspirational
Attorneys with experience and skills in management and law practice technologies, as well as those with little or no such experience and skills, are under the same mandate to take reasonable steps to ensure that protections are taken against security weaknesses unique to the internet, “particularly ‘end-user’ vulnerabilities found in the lawyer’s own law office.” Attorneys should seek guidance from those with advanced expertise in current and future technologies, going beyond the transmission and storage of client information via SaaS through the internet, to the data storage centers of vendors, to all case and practice management services, including far-ranging applications such as “web-based email programs, online legal research software, online backup and storage, test messaging/SMS (short message service), voicemail on mobile or VoIP phones, online communication over social media, and beyond.”
Seeking guidance in advance is an easy preventive step. Attorneys may request “risk management” advice from their liability insurance carrier, consultation with their general insurance agent regarding a rider for cybersecurity, or approach the state bar directly for counsel and guidance from the bar’s ethics and grievance committee or technology section.
V. Conclusion
This article on NAELA’s 2017 Aspirational Standard E, Confidentiality, began with a summary of ABA Model Rule 1.6 as its foundation. It laid out a side-by-side comparison of NAELA’s 2005 and 2017 editions of the Confidentiality Aspirational Standard and informed readers of the 2012 addition of ABA Model Rule 1.6(c), addressing the prevention of inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client (especially related to new technologies).
The summary and comparison directed the remainder of the article as it focused on several revised sections of the 2017 edition of the Aspirational Standards and provided case studies where appropriate and instructive to the analysis. Many sections dove into expansions of the Example case studies used in the Aspirational Standards to more fully illustrate the comments attendant to the black letter rules. Last, it added an additional section not addressed in the Aspirational Standards related to the protection of client confidential information when using new technologies and social media applications, focusing on those that are web-based or in the clouds.
Side-By-Side Comparison of 2005 and 2017 Standard
A. 2005 Standard
The elder law attorney:
1. Carefully explains the obligation of confidentiality to the client and involved parties as early as possible in the representation to avoid misunderstanding, and to ascertain and respect the client’s wishes regarding the disclosure of confidential information.
2. Establishes as a prerequisite to any joint representation a clear understanding and agreement that the attorney shall keep no client secrets from any other client in that joint representation.
3. Strictly adheres to the obligation of client confidentiality, especially in representation that may involve frequent contacts with family members, care takers, or other involved parties who are not clients.
B. 2017 Standard
The elder and special needs law attorney:
1. Carefully explains to the client and others involved, as early in the representation as possible, the attorney’s duty of confidentiality to the client in order to avoid misunderstandings and to ascertain and respect the client’s wishes regarding the disclosure of confidential information.
2. Explains how the rules of confidentiality are applied to different forms of representation, including individual representation and joint representation.
3. Establishes as a prerequisite to joint representation a clear understanding and agreement that the attorney will keep no client secrets from any other client in that joint representation.
4. Strictly preserves client confidences, especially in situations that involve frequent contacts with family members, caregivers, or other trusted third parties who are not clients.
5. Ascertains the wishes of the client as to whom, if anyone, the attorney may disclose confidential information and explains the potential consequences of such disclosure.
6. Carefully maintains client confidentiality to the extent possible while also meeting the requirements of laws, regulations, and court orders imposing a duty to disclose.