THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE
Opinion 2007-10
(August 2007)

This inquirer represents a client who was injured in a motor vehicle accident while a passenger on mass transit. Initially, the client informed the inquirer that the client did not own a motor vehicle at the time of the accident. Under those circumstances her first party benefits for medical coverage would be paid by the carrier of the motor vehicle that was in the accident. Based upon that information the inquirer settled the third party claim, made distribution of the settlement funds, and commenced a lawsuit for payment of the client’s outstanding medical bills. During that litigation it was discovered that the client owned a motor vehicle that was uninsured at the time of the accident, and thereby was not eligible to obtain payment of her medical bills from the insurance carrier of the motor vehicle involved in the accident. Based on this, the inquirer advises that he is "forced to discontinue and end the action." The statute of limitations governing the cause of action wherein the medical providers could sue the client for payment of the outstanding medical bills will run in approximately three months. The inquirer has not issued a letter of protection to any of the medical providers. It is the inquirer’s belief that the medical providers are relying upon his office and the reputation of his office to secure payment of the medical bills. The inquirer believes his client to be honest and forthright in explaining the facts and circumstances of the case to the inquirer, but also advises that his client is elderly and has severe memory problems.

The inquirer asks for the Committee's guidance as to the appropriate course of professional conduct to be followed in this situation. Specifically, the inquirer asks whether or not he may disclose to the medical providers the fact that the client is not eligible for coverage of the outstanding medical bills, that the third party claim has been settled and distribution completed, and that the Statute of Limitations pertaining to the medical providers’ cause of action against the client for payment of the medical bills will run in approximately three months.

Pennsylvania Rule of Professional Conduct (the "Rules") 1.6, Confidentiality of Information provides that,

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.
(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another;
(3) to prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used; or
(4) 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 or disciplinary proceeding 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; or
(5) to secure legal advice about the lawyer's compliance with these Rules; or
(6) to effectuate the sale of a law practice consistent with Rule 1.17.

Rule 1.0(e) defines "informed consent" as,

…the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

The Committee advises that the inquirer can not make any disclosure to the medical providers absent the informed consent of the client. The inquirer must fully explain the facts and circumstances of the present situation to the client. The actions of the inquirer in terms of what has taken place with the third party claim and what assertions the inquirer has made to the medical providers must be disclosed to the client. The inquirer must explain the material risks and reasonably available alternatives to the client with respect to the client's obligations relating to the outstanding medical bills and the effect that the running of the statute of limitations has on such obligations. Furthermore, in asking for the client's informed consent to make disclosures to the medical providers, the inquirer must be mindful of the client's capacity to make adequately considered decisions. If there is any question as to the client's capacity to do so, Rule 1.14 should be considered.

In addition, based upon the stated facts, there appears to be no basis to apply any of the exceptions to Rule 1.6 that would allow disclosure of the information to the medical providers. A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. As stated in Comment 2 to Rule 1.6, "This contributes to the trust that is the hallmark of the client lawyer relationship." The Committee concludes that unless the client gives informed consent, the inquirer must not disclose any of the information to the medical providers. The Committee further advises that in order to obtain that informed consent, the inquirer must fully explain the situation and ramifications to the client in a way that the client is able to understand them.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.