Opinion 2003-11

(August 2003)

 

The inquirer represented a client who was being evicted from a private recovery facility where he was being treated for serious substance abuse and mental health problems.   During the inquirer's negotiations with the facility owner to delay the client's eviction, the client committed suicide.   Another resident of the facility told the inquirer that the client argued with the facility owner shortly before the suicide occurred.   The client's father has asked the inquirer for information about events leading up to the client's death.   The father is aware of the client's argument with the facility owner because the client told him about it. Following the suicide, the inquirer discovered several regulatory irregularities concerning the facility from several tenants who lived there and from a review of public records. 

 

The inquirer asks whether the duty of confidentiality and the attorney-client privilege prevent him from responding to the father's request for information and/or from contacting the media or governmental agencies about the regulatory irregularities at the facility.  The inquirer also asks whether the ability to make disclosures to the father would change if the father were appointed executor of the client's estate.  

 

The attorney client privilege doctrine is established by statute and is not codified under the Pennsylvania Rules of Professional Conduct.  Therefore the Committee's opinion is limited to discussing the inquirer's obligations and duties under Pennsylvania Rule of Professional Conduct (the "Rule")1.6, Confidentiality of Information. 

 

With regard to responding to the father's request for information, the inquirer must comply with Rule 1.6, which generally prohibits a lawyer from revealing information relating to representation of a client unless the client consents.  The rule applies to all information relating to the representation, whatever its source.  Although the rule contains several exceptions, they are inapplicable to the facts as presented by the inquirer.  Under Rule 1.6, the duty of confidentiality continues after the client/lawyer relationship has terminated.  As a result, the duty is not terminated by the client's death.  

 

In this instance, the inquirer cannot obtain the client's consent, therefore Rule 1.6 prohibits the inquirer from making disclosures related to the representation to the client's father.   However, Rule 1.6 does not prohibit the inquirer from discussing matters unrelated to the representation.  From the facts presented, it appears that the inquirer was retained to represent the client's interest in connection with the facility where the client was being treated.  As a result, it would appear that matters involving the facility are therefore related to the scope of the inquirer's representation.  However, the inquirer must make this determination.  Similarly, since Rule 1.6 prohibits the disclosure of information related to representation from whatever source, the inquirer is prohibited from revealing information about the regulatory irregularities at the facility if the inquirer determines that this information is related to the inquirer's representation of the client.  The inquirer is cautioned that but for his/her representation of the client, he/she would probably not have investigated the facility, therefore information gained from the investigation is most likely related to the representation.

 

Rule 1.6 is silent on the issue of whether an executor is authorized to provide the consent necessary before disclosure of confidential information and information related to the representation of a client.  This issue was presented to the Committee once previously, but the opinion that was issued left the matter open. 

 

However, Rule 1.14, which deals with a client under a disability, recognizes the court's ability to appoint a legal representative, such as a guardian, to act on behalf of a client in certain circumstances.  The comments to Rule 1.14 state that when a legal representative has been appointed for a client, the lawyer should look to the representative for decisions on behalf of the client.  Since an executor is the legal representative of a decedent's estate, it follows that a lawyer may look to that person for decisions on behalf of the estate.  Therefore, if appointed executor of the client's estate, the father would be authorized to consent to the disclosure of confidential information and information relating to representation of the client.

 

The inquirer should be cautioned that confidentiality of information is a fundamental principle in the client-lawyer relationship.  It is important that the inquirer limit disclosure of information relating to representation of the client to that which is necessary to protect or assert the actual or potential rights of the decedent's. Furthermore, if the inquirer is aware through his representation that the deceased client would not consent to the revelation then the information should not be disclosed to anyone.

 

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.