The professional responsibility rules permit an attorney to disclose a client’s confidential information without the client’s express consent when disclosure is reasonably necessary to comply with a law, court order, or other professional responsibility rule. In making such a disclosure without the client’s express consent, the attorney should be cautious to disclose only enough information that is required to comply with the law, court order or other professional responsibility rule that requires disclosure.
An example of a state laws that may require an attorney or a health care professional employed by the attorney to make disclosures without the client’s express consent is a law regarding mandatory reporting of abuse. For this reason, the attorney should discuss with the client how such reporting laws may affect the attorney’s duty to maintain the client’s confidences. The client may wish to sign an agreement to disclose future suspected abuse without the client’s express consent in order to protect the client from abuse. (See Standard A. Holistic Approach, Section 6).
Another example of laws that may affect the attorney’s duty to maintain a client’s confidences is the transparency provision in the Uniform Trust Code, provisions in the Uniform Probate Code, and state trust laws that protect the rights of trust beneficiaries to receive trust records and financial reports. However, when an attorney is retained by a trustee to assist with trust administration, the attorney’s client is the trustee rather than the trust’s beneficiaries (See Standard B. Client Identification, Section 2). It is the attorney’s duty to make sure that the trustee understands the trustee’s duties as a fiduciary, including the trustee’s duty to disclose all trust information that is required by law and the trust agreement. If the trustee refuses to make disclosures to the beneficiaries as directed by the attorney, the attorney should consider withdrawing from the representation and, if ordered by a court, the attorney must disclose information that may indicate the trustee’s breach of duties without the trustee’s consent.
When drafting trusts that are subject to disclosure laws, the attorney should ensure that the grantor client understands the implications of such laws. The attorney also should advise the grantor to consider carefully the competing interests of primary and remainder beneficiaries and to analyze ways in which to protect the privacy interests of beneficiaries while meeting the disclosure duties owed to beneficiaries. Similar considerations apply when the client is establishing joint accounts or preparing beneficiary designation forms for assets such as retirement accounts, life insurance policies, and transfer on death accounts.
When a grantor requests, the attorney may be able to draft provisions in trusts to reduce the disclosure dilemmas that trustees may face. The attorney should determine whether clients are concerned about a trust beneficiary’s confidentiality, not only with respect to the primary beneficiary but also remainder beneficiaries. When the trust has already been created, the attorney should inform the client of the rights of and duties to remainder beneficiaries so that the client can determine the impact on his or her objectives for the primary beneficiary.
For example, medical expense records may address personal matters that a trust beneficiary considers confidential. The trustee may need detailed information in order to determine whether to pay certain bills. This information becomes part of the trust’s records. Such access could result in exposure of an individual trust beneficiary’s private information. When advising trustee clients or grantors, or when acting as trustee, the attorney must balance these competing duties, especially when the primary beneficiary is a vulnerable person who has significant care and other personal needs. Trust provisions may authorize trustees to develop systems for balancing confidentiality and disclosure duties, with the goal of avoiding future costly disputes. Model Rule 1.14: Client With Diminished Capacity, Section (c) provides a limited implied exception to the confidentiality rule when a client’s capacity is diminished and protective action is needed in order to prevent physical, financial or other harm to the client (See Standard 4 Section G Client Capacity). In those circumstances, the attorney should take the least restrictive action possible and only disclose the confidential information that is reasonably necessary to protect the client.
In some narrow instances, the attorney may reveal confidential information, without first obtaining the informed consent of the client, if the disclosure of such information is impliedly authorized to carry out the representation.