Although the subject of attorney-client confidentiality and its nuances are drilled into every aspiring law student throughout law school and beyond, most clients don’t have an understanding of what exactly this means in the context of the attorney-client relationship. To them it’s vague, and they only have a simplistic understanding of this concept. A few clients even believe that attorneys have the discretion to disclose confidential client communication. Complications arise when a prospective client wants one or more of their children in an initial meeting, or when they want a non-attorney professional advisor in the room. Sometimes the client’s financial advisor, in his or her eagerness to provide a holistic approach to their clients’ wealth management, expresses an interest to the client and the attorney to be included in these initial discussions. All these situations make it challenging for the attorney to educate their clients about confidentiality and explain the risks of disclosure. Clients do not realize that they are the only ones protected and the only ones authorized to waive this protection.
Because attorneys have special ethical responsibilities, it becomes more complicated and challenging when representing clients with diminished capacity. Here, attorneys are bound by the Model Rules of Professional Conduct (RPC 1.14) and have a duty to maintain (as far as possible) a normal attorney-client relationship with such clients and ensure they are treated with the same degree of respect and attention that any other attorney-client relationship is afforded.
For example, earlier we stated that complications are possible when a client wants one or more of their children in an initial meeting. Some of the risks of waiving confidentiality with respect to the presence of only one child in the room with a mother or father could be that the other children could bring an action of undue influence, where they could assert that the child in the room pressured the mother or father to disproportionately change the disposition of assets.
It is important for the attorney to utilize different interviewing techniques during the meeting to maximize client capacity and his or her participation in the discussion. Attorneys have to be on high alert to make sure the client is not facing any substantial physical, financial, or other harm, by someone else, who could often be a close family member. In such cases, it becomes the attorney’s ethical duty to consider disclosure of confidential information to other certain individuals or entities who may be able to take action to protect the client from such harm. At the same time, the attorney needs to be extremely careful that such disclosure is only what they believe is necessary to protect the client.
One potential conflict we face when we have concerns about the client’s capacity is to choose between the client’s wishes or the client’s best interest. Here we need to consider several factors to resolve the conflict – type of representation sought, forum in which the services are to be provided, involvement of other parties in the matter, etc.
Ultimately, its critical for attorneys to balance the client’s needs for decision-making assistance with the clients’ other interests, including autonomy, safety, independence, financial well-being, health care, and personal liberty.