E. Confidentiality

The elder law 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.

Confidentiality of client information is a core fundamental principle of the attorney-client relationship, and the attorney must guard against the disclosure of the client’s protected confidential information.  

The attorney should begin every initial conference with an explanation of the confidentiality rules and, if possible, address confidentiality before the initial meeting so that the client can decide who should attend.  The explanation should make clear that the client is the only one protected and authorized to waive the protection.   

The confidentiality rules apply not only to matters that the client communicates to the attorney in confidence but also to all information that the attorney acquires from other sources, such as the client’s family members, health care providers, tax preparer or assigned case worker employed by a government agency. 

The attorney should keep in mind that clients and others involved in the representation generally will have a vague and limited understanding of the special role that confidentiality plays in legal representation. Such a vague and limited understanding may lead individuals to believe that the attorney has discretion to disclose confidential client information even when instructed otherwise.

Example: Wife retains attorney. At the time, wife was alone and declared to attorney that attorney was to represent her only. Wife further instructed attorney to say nothing to her husband or their children. Attorney agrees to the attorney-client representation and executes with wife a written legal services agreement. Wife goes on to explain that her husband had been diagnosed with Alzheimer’s disease several years earlier and had declined drastically in the past year. Wife discloses to attorney that she and her husband saw another attorney a year earlier, executing advance directives and mirror- wills. Wife states that while acting as her husband’s attorney-in-fact she transferred all assets out of her husband’s name into hers. She further acknowledges that she has placed him in an assisted living facility over his objection.

Wife instructs attorney to create a new will for her, deleting husband as a devisee, leaving their children, and adding her non-marital child unknown to her husband. Wife also informs attorney that she has engaged yet another attorney to initiate a divorce action against her husband. Attorney begins providing the legal services as wife has instructed.

Attorney has known wife and her husband for many years, and has attended church with their children. Because of gossip in the community, wife’s children approach attorney, begging for information about what is going on with their mother. Attorney despairs over the children’s anguish and concern, knowing that the information she received from wife, her client, could ease their troubles and anxieties and bring them a degree of comfort.

Analysis: Client identification is not at issue; neither is joint client representation. The example, focused on confidentiality, is simple and the analysis easy because there is but one client. Attorney has a duty of loyalty only to wife. Attorney has no duty to wife’s husband or her children. These facts do not rise to any level that would warrant attorney’s exercise of discretion under Model Rule Rule 1.6: Confidentiality of Information.

In fact, she has been specifically instructed otherwise by her client. No matter how much the information would help husband and the children, attorney must maintain wife’s secrets, honoring attorney's duty of confidentiality to attorney's only client.  However, following that which elder and special needs law attorneys aspire to do, attorney should counsel wife, inviting her to consider ways to develop a person-centered plan for her husband and involve her children in ways that would calm their fears while still reaching her goals. Attorney might warn wife that the situation could turn adversarial if the children engage their own attorney to intervene and wife could be immersed in litigation that would take significant amounts of time and money. 
2. Explains how the rules of confidentiality are applied to different forms of representation, including individual representation and joint representation.

Due to the nature of elder law and special needs law, the attorney often is involved with several individuals, including clients and non-clients.  When there are multiple individuals involved in the representation, the identity of the client and consequent duty of confidentiality may not initially be clear to everyone.  Before the client decides which form of representation to use, the attorney should ensure that the client understands how the confidentiality rules apply to each form of representation (See Standard #1 Section B Client Identification).   

When the attorney represents more than one client in a matter, there is greater complexity when applying state professional responsibility rules of confidentiality.  Similar complexity arises when the client chooses to involve and share information with trusted third parties who are not joint clients in the representation.  The attorney should ensure that all persons involved understand how confidentiality applies in each representation.

Example:  Mr. A’s daughter contacts the attorney seeking assistance for her father to arrange his legal affairs before he enters an assisted living facility.  At the initial consultation, the attorney and Mr. A agree that Mr. A is the client.  In the process of formalizing the client-attorney relationship, the attorney confirms that Mr. A wants the attorney to communicate with his daughter.  The engagement agreement should make clear that only Mr. A is the client and that the attorney is authorized to communicate with Mr. A’s daughter. 

Since the daughter is not represented, the attorney should communicate that: (1) Mr. A is the client and the attorney’s ethical duty is to protect Mr. A’s interests only, (2) the attorney is authorized to provide information to daughter regarding tasks undertaken only to the extent that Mr. A either authorizes such disclosure, or such disclosure is impliedly authorized in order to carry out the representation, and (3) daughter should consult her own legal counsel regarding the impact of her father’s estate planning on her own affairs.

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. 

Often attorneys represent more than one client in a matter such as representing a married couple in an estate plan.  (See Standard D. Conflicts of Interest, Section 2). 

Before undertaking joint representation of clients, the attorney should ensure that the clients understand the attorney’s ethical obligation to disclose information learned from one joint client to the other joint client and the consequences of such disclosure. The engagement agreement should make clear the attorney’s obligation to keep no secrets.   If the attorney obtains   information from one joint client that 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 should share the information with the joint client and/or withdraw from the representation pursuant to state professional responsibility rules.  In some states, the attorney need not explain the reason for the withdrawal. State professional responsibility rules vary widely on confidentiality among joint clients, and the attorney should act in accordance with those state rules.

Example 1: 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 fails to provide for sharing 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. 

Example 2:  The lawyer who represents a husband and wife in estate planning matters might conclude that information imparted by one spouse (e.g., an act of marital infidelity) need not be communicated to the other spouse.  On the other hand, the lawyer might conclude that some action must be taken with respect to a confidential communication concerning a matter that threatens the interests of the other client or could impair the lawyer’s ability to represent the other client effectively (e.g., “After she signs the trust agreement I intend to leave her” or “All the insurance policies on my life that name her as beneficiary have lapsed”).  Without the informed consent of the other client, the lawyer should not take any action on behalf of the communicating client, such as drafting a codicil or new will, that might damage the other client’s interests or otherwise violate the lawyer’s duty of loyalty to the other client (see ACTEC Commentary on Model Rule 1.6: Confidentiality of Information.)

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.

Many elder law and special needs law matters are non-adversarial, and these matters may involve the help of family members and other trusted third parties. In cases in which an individual needs assistance from others, the individuals providing the assistance may believe that they, too, are clients of the attorney.  In some cases, these non-clients will be involved consistently and extensively on a day-to-day basis.  The client and nonclients may even have shared goals or combined property interests.  In such cases, there may be an initial expectation that the attorney represents both the client and the others involved. It is the attorney’s duty to ensure that individuals who are unrepresented understand that they are not clients of the attorney. 

There may be occasions when the attorney needs to communicate with non-clients who are trusted third parties working closely with the client.  In doing so, the attorney must use care in communicating with the unrepresented individuals, and may not disclose confidential information without the client’s consent.  

Example:  Father makes an appointment with an attorney on behalf of son who has serious physical disabilities and other challenges but does not lack capacity. Son comes to the appointment accompanied by mother and father.  Son’s mother and father manage son’s finances and provide personal care to him.  Many aspects of their lives are intertwined, but son is the sole client unless the parties enter into a joint representation engagement.  If son is the sole client, the attorney may not disclose son’s confidential information to his parents without son’s consent, unless otherwise authorized. (See Standard D. Conflicts of Interest, Section 4.)

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.

In situations when the client requests disclosure, the attorney should be mindful of the consequences and ensure that the client understands the possible risks and implications of such disclosure (See NAELA Journal Volume 4, Number 2, Ethical Issues in Representing Seniors, Persons With Disabilities and Their Families, by Stuart D. Zimring, Appendix A).  The attorney should explain to the client the options regarding the type of information to be disclosed, the method of disclosure, and to whom the information is disclosed.  The attorney should also explain that the non-client’s presence may waive the client-attorney privilege (See NAELA Journal Volume 2, No. 1, To Speak or Not to Speak: Effect of Third Party Presence on Attorney Client Privilege, by Roberta K. Flowers, Esq.) unless such individual’s presence is necessary to assist in the representation (See United States v. Kovel).  The same steps should be taken if the attorney or others ask the client to approve disclosure. A client who decides to waive confidentiality and direct the release of confidential information should do so with a written waiver specifying the scope of information to be disclosed, and to whom (See Standard B. Client Identification, Section 1.)

Example: 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 client-attorney privilege with respect to the disclosed information, and may cause additional issues regarding his client-attorney privilege. 

The attorney should recognize that there may be changes in the client’s circumstances during the representation and that the client’s disclosure preferences may change.  The attorney should ensure that the client knows that there is authority to change disclosure preferences throughout the representation. In all instances, the client should be informed that the consent is optional and also revocable by the client at any time.  

The attorney’s duty of confidentiality continues after termination of the client-attorney relationship, and any disclosure of confidential information must be in accordance with a signed waiver or court order.  In some cases, it is beneficial for the attorney to discuss with the client the option of signing a waiver that authorizes the attorney to disclose specific confidential information after the termination of the relationship.  This waiver may ensure that the client’s estate planning wishes and intent are upheld.

6. Carefully maintains client confidentiality to the extent possible while also meeting the requirements of laws, regulations or court orders imposing a duty to disclose.

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.

Don't forget to renew your NAELA membership for the 2024 year.

Renew today