An Attorney May Obtain Advance Consent to Take Protective Action on Behalf of a Client Who Later Becomes Incapacitated

by Anne M. Rudolph

In 2018, the Supreme Court rejected a proposed modified version of Model Rule 1.14 which would have allowed an attorney to take protective action if the attorney reasonably believed that the client had diminished capacity, was unable to act in the client’s own interest, and was at significant risk of physical, psychological or financial harm. Though the Supreme Court did not state its reason for the rejection, it is understood that the proposed rule was rejected because taking such protective action would have required an attorney to disclose a client’s confidential information in contradiction of the attorney’s duty under Business and Professions Code 6068, subdivision (e).

Information that a client’s capacity has diminished, and information about that incapacity, whether or not subject to the attorney-client privilege, is generally confidential and protected from disclosure by an attorney’s duty under Business and Professions Code section 6068, subdivision (e)(1). By rejecting proposed Rule 1.14, the Supreme Court confirmed that an attorney cannot disclose any confidential information learned from the client without the client’s consent, even when the client has diminished capacity and the attorney believes that her client is the victim of, or at risk of being the victim of, financial or physical abuse.

The State Bar of California Standing Committee on Professional Responsibility and Conduct (COPRAC) recently issued Formal Opinion 2021-207 which, in part, addresses whether it is ethically permitted to obtain advance consent from a competent client to disclose confidential client information in order to take protective actions on behalf of the client in the event the client later becomes incapacitated. COPRAC concludes that as long as the requirements of Rules of Professional Conduct 1.0.1, 1.2, 1.4, 1.6 and 1.7 are met, an attorney may obtain advance informed written consent to take protective action in the event that a client becomes incapacitated. However, there are important limitations on such advance consents.

The COPRAC opinion contains an extensive analysis of the duties at issue and the factors to consider when obtaining advance informed written consent. Those duties include the primary duties of loyalty and confidentiality.

One of the key considerations COPRAC addressed in its determination that advance consent is permitted is that Rule 1.6 – Confidential Information of a Client – does not require that informed consent to disclosure of confidential information be contemporaneous with the disclosure.

Rule 1.2 permits a client to give advance consent for an attorney “to take specific action on the client’s behalf without further consultation.” An attorney may act on this consent provided there has been no material change in circumstances and the attorney has complied with the duty to communicate under Rule 1.4.

In order to be valid, the consent must be informed. The attorney in obtaining the consent must communicate the relevant circumstances and the material risks, including reasonably foreseeable adverse consequences.
The consent also must be revocable so long as the client retains legal capacity, and the right to revoke should be part of the informed consent.

Some actions that a client may wish to provide advance consent for an attorney to take are: to notify certain person(s) if the client’s capacity has diminished; to notify certain person(s) if the attorney suspects that the client is the victim of financial or physical elder abuse; and to disclose copies of the client’s estate planning documents to the successor fiduciaries listed therein.

Rule 1.6 does not require that advance informed consent to disclosure of confidential information be in writing. However, providing the advisement of relevant circumstances for the client to consider, and obtaining the advance consent in writing are the best practices to establish that the consent was informed and is enforceable.

Anne M. Rudolph – March 30, 2022