Ethics Question of the Month - May 2021
My Lips Are Sealed. Unless . . . .”
Attorney Samantha is a 30-year attorney who provides a variety of legal services at her general practice in a mid-size Texas city. Because of her diligence and reputation, many clients have been with her for decades.
Her longtime client, Walter, has operated a small business for 25 years. He makes an appointment with Samantha to make changes to his estate planning documents. During her interview of Walter, Samantha becomes concerned that he doesn’t seem to remember the names of his children or the properties he owns. Samantha knows, for example, that he inherited some property outside the city, but when she asks Walter about it, he looks puzzled and says, “What property?”
Samantha is concerned about his mental status and wonders whether she should inform his family of their conversation, but she is concerned about her ethical obligation to maintain client confidentiality. Under the recent proposed amendments to the Texas Disciplinary Rules of Professional Conduct, which of the following is most accurate?
A. Samantha does not have enough evidence to speak to anyone about Walter’s condition.
B. If Samantha reasonably believes that Walter lacks legal competence that endangers his legal security, she can initiate a guardianship or appointment of a similar legal representative as long as she does not reveal confidential information.
C. Samantha can disclose confidential information to Walter’s spouse about his proposed changes to his estate planning documents if his spouse’s community property is affected.
D. Samantha can disclose confidential information to Walter’s spouse and children if both will be affected by any proposed changes to his estate planning documents.
E. Samantha may take reasonably necessary steps to protect Walter’s interests, including making limited disclosures of confidential information and having informal consultations with individuals or entities who are in a position to protect Walter’s interests.
Samantha is trying to determine whether the Texas Disciplinary Rules of Professional Conduct give her the right to divulge confidential information to protect Walter’s interests where she believes that Walter may be suffering from “diminished capacity.”
The conditions that allow lawyers to divulge confidential information without consent of the Client are quite limited under Rules 1.02, 1.03, and 1.05. The most notable exception to confidentiality under those rules is 1.05(d), which authorizes disclosure when the lawyer reasonably believes that the client is likely to commit a criminal or fraudulent act likely to result in death or substantial bodily injury.
The only option currently available to Samantha under the pre-referendum rules is the one found in Rule 1.02 (g), which authorizes her to seek appointment of a personal representative if she “reasonably believes” Walter lacks legal competence and requires protection. This is the course of action described in option A.
In the February 2021 referendum, the Bar approved a new Disciplinary Rule that creates a narrow exception to confidentiality in this situation. Samantha can now consult with an appropriate person, including a doctor or family member, to convey her concerns about Walter’s declining ability to understand the effect of his decisions. This exception is not a waiver of all confidentiality. It is anticipated that Comments will be promulgated that describe typical uses for this rule.
In the meantime, it worth noting that this new rule is completely permissive – not mandatory. The purpose is not to protect the lawyer but to protect a client who is at risk of substantial harm from damaging his interests.
Therefore, under the current Rules, the correct answer is A. If the Supreme Court of Texas approves new Rule 1.16, the correct answer will be E.