Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

BY GEOFFREY MARCUS

A recent opinion from the New York City Bar Association’s Committee on Professional Ethics finds that a lawyer may disclose a limited amount of confidential information when a prospective client with serious diminished capacity is at risk of substantial physical, financial, or other harm.  Read the full opinion here.

The opinion describes a scenario in which a neighbor brought a tenant facing immediate eviction to an attorney for legal assistance. During their meeting, the attorney became concerned that the tenant was so seriously mentally incapacitated that she could not retain a lawyer. Despite the absence of an attorney-client relationship, the attorney still wanted to help the tenant.

Rule 1.14 of the ABA Model Rules of Professional Conduct explicitly addresses the circumstances in which a lawyer may take protective action for the benefit of current clients with diminished capacity. The rule remains silent as what a lawyer can do for prospective clients, but the Committee’s recent opinion provides guidance on this issue.

The Committee concluded that mental capacity is not a factor in determining whether a person is a prospective client and that lawyers owe the same duty of confidentiality to prospective and current clients alike. The Committee references Rule 1.14(c), which provides lawyers with implied authorization under Rule 1.6(a) to disclose confidential information reasonably necessary to protect current clients with diminished capacity. Therefore, the Committee reasons that Rule 1.14(c) applies to prospective clients.

In addressing the earlier scenario with the tenant, the Committee noted that the “lawyer is impliedly authorized to reveal confidential information about the prospective client to a court, a social services agency or another, but only to the extent reasonably necessary to protect the prospective client’s interests.” However, the Committee emphasizes that, when a lawyer interacts with the court and others, she must clarify that she does not represent the prospective client and that no attorney-client relationship exists.