Ethics Advisory Opinion 08-09

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

SC Rules of Professional Conduct: 1.6, 1.9, 1.14, 1.18

Facts
Lawyer received call from A requesting an appointment to discuss cousin (鈥淐ousin鈥�) whom A informed Lawyer鈥檚 staff was mentally deficient. Cousin is an only child, and Cousin鈥檚 mother and father, both deceased, owned property at their deaths. Cousin鈥檚 mother鈥檚 estate had been probated, and the property was conveyed to Cousin and Cousin鈥檚 father by deed of distribution. Cousin鈥檚 father鈥檚 estate had not been probated. Lawyer researched records and confirmed property ownership and estate status. A brought Cousin鈥檚 aunt (鈥淎unt B鈥�) and un91黑料爆料 (鈥淯n91黑料爆料鈥�) to the appointment. A explained that Cousin is mentally incapacitated; however, there has never been a judicial determination of such. Cousin receives Medicaid and Veterans Administration benefits and has no brothers or sisters. Cousin鈥檚 aunt (鈥淎unt C鈥�) acts as caretaker of Cousin, paying bills, property taxes and generally looking after Cousin. Aunt C is elderly and is concerned about Cousin in the event of her death; however, she did not attend the appointment.

Lawyer gave advice to A, Aunt B and Un91黑料爆料 concerning Cousin and how to protect his interests: appointment of conservator, probating of father鈥檚 estate and sale of property for Cousin鈥檚 benefit; however, Lawyer has reason to believe A was not receptive to such advice. Lawyer refused to participate since he has reason to believe that A, Aunt B and Un91黑料爆料 are intending to transfer Cousin鈥檚 property without consideration of Cousin鈥檚 best interests.

Questions
Is Lawyer prohibited from reporting this matter to the Department of Social Services or the appropriate protective service entity?
Who is Lawyer鈥檚 client, if anyone?
What are Lawyer鈥檚 obligations, if any, to Cousin?

Summary
Ordinarily, a Lawyer has a duty of confidentiality to clients. Under these circumstances, however, Lawyer is not prohibited from reporting the matter to the Department of Social Services or the appropriate protective service entity. The determination of who may be the client is a matter of law that the Committee declines to determine. However, regardless of which party may be a client, the result does not change. The Lawyer has no ethical obligation to Cousin unless Cousin is the client, in which case, the Lawyer again may take appropriate action including reporting the matter to the Department of Social Services or the appropriate protective service entity.

Opinion
While the Committee believes that the determination of who may be a client is a matter of law, the analysis of which Rules may apply to this matter require such a determination. There appear to be four potential clients: A, Cousin, Un91黑料爆料, and Aunt C. It appears from the facts that Aunt B only attended the meeting as a related party and without any intention to establish any relationship with Lawyer. If A or Un91黑料爆料 is intended to be the client, one must look first to Rule 1.18 regarding duties to prospective clients. Lawyer engaged in discussions with A and Un91黑料爆料 subsequent to research into the property and estate matters related to Cousin. The Lawyer anticipated the meeting to result in a client-lawyer relationship. A鈥檚 request to meet may indicate A鈥檚 anticipation that a client-lawyer relationship resulted from the meeting, and Un91黑料爆料鈥檚 presence at the meeting and indication of a desire to have Cousin鈥檚 property transferred to him may indicate Un91黑料爆料鈥檚 anticipation that a client-lawyer relationship resulted from the meeting. Paragraph (b) provides that even if no client-lawyer relationship is formed, the lawyer may not use or reveal information learned in the consultation except as Rule 1.9 permits. Rule 1.9 would permit Lawyer to reveal information learned from A and Un91黑料爆料 as the Rules would permit or require, or if the information becomes generally known. Rule 1.6 addresses when a lawyer may reveal information relating to the representation of a client.

If Aunt C is intended to be the client, Rule 1.18 would not apply since Aunt C did not attend the meeting nor have any contact with Lawyer and therefore neither Aunt C nor Lawyer can have a reasonable expectation of a client-lawyer relationship. Rule 1.6 would then be applicable in determining whether the information obtained relating to the relationship of a client may be revealed.

If Cousin is intended to be the client, Rule 1.18 again would not apply since neither Cousin nor Aunt C, who could possibly be held as being able to act on behalf of Cousin, attended the meeting or had any contact with Lawyer. Cousin therefore cannot have a reasonable expectation of a client-lawyer relationship. If, however, Cousin is determined to be the client, Rule 1.14 is helpful to Lawyer. Lawyer is permitted to take protective action to insure Cousin is protected from 鈥渟ubstantial鈥inancial or other harm.鈥� Such protective action according to Rule 1.14(b) includes 鈥渃onsulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.鈥� Comments to Rule 1.14 indicate that the fact that the information was obtained from A, Aunt B and Un91黑料爆料 does not diminish the client-lawyer relationship if one exists Rule 1.6 would then be looked at to determine whether information obtained relating to the relationship of a client may be revealed.

Rule 1.6 prohibits Lawyer from revealing information relating to the representation of a client unless the client consents, disclosure is impliedly authorized or disclosure is permitted by Rule 1.6(b). The presented facts do not indicate that A or Un91黑料爆料 would consent to disclosure of the information nor would disclosure be impliedly authorized in order to carry out the representation of A or Un91黑料爆料. The facts do not indicate whether Aunt C or Cousin would consent to the disclosure, however, if Aunt C is actually acting in the best interests of Cousin, disclosure could be impliedly authorized since it would be necessary to protect Cousin鈥檚 interests. If Cousin is the client, Rule 1.14 gives authorization; if Rule 1.14 did not apply, Rule 1.6 could allow disclosure based on implied authorization since it would be necessary to protect Cousin鈥檚 interests. If disclosure was not consented to or impliedly authorized by A, Un91黑料爆料 or Aunt C, Lawyer may still disclose the information under paragraph (b). Subsections (1) and (3) may allow Lawyer to disclose regardless of the identity of the client. These subsections allow Lawyer to disclose information 鈥渢o the extent the lawyer reasonably believes necessary鈥� to prevent A, Un91黑料爆料 or Aunt C from committing a criminal act against Cousin or to prevent A, Un91黑料爆料 or Aunt C from committing a crime or fraud that results in 鈥渟ubstantial injury to the financial interests or property鈥� of Cousin. The latter provision requires that the crime or fraud be committed in 鈥渇urtherance of which the client has used or is using the lawyer鈥檚 services.鈥� If A, Un91黑料爆料 or Aunt C utilized Lawyer鈥檚 services to effect the property transfer, Lawyer may disclose under Rule 1.6(b)(3). Since Lawyer declined to participate in the transfer, Lawyer should look to Rule 1.6(b)(1) as the means to disclose.

Regardless of the identity of the client, Lawyer may disclose the information obtained relating to the potential harm to Cousin鈥檚 interests; however, there is no ethical duty or requirement to disclose same. This opinion does not take into consideration any potential reporting requirements imposed by other law. If, however, any other law requires or permits Lawyer to disclosure the information, Rule 1.6(b)(7) permits the disclosure in compliance with law.