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’S 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.
Ethics Advisory Opinion 93-04
Attorney recently drew up a trust agreement and pour-over will for Mrs. Smith, an elderly female client. AT the same time Mrs. Smith executed a durable general power of attorney, naming as her attorney-in-fact Mrs. Jones, a somewhat younger woman who is a long time friend of her family. This power of attorney authorized Mrs. Jones "To do and perform all and every act, deed, matter and thing whatsoever in about my estate, property, and affairs as fully and effectually to all intents and purposes as I might or could do in my own proper person if personally present...".
Mrs. Smith gave Mrs. Jones a copy of the power of attorney and told her that Mrs. Smith has revised her estate plan, but did not give details. Mrs. Jones is one of the beneficiaries of the trust.
Mrs. Smith, though in her early nineties and in frail health, is unquestionably mentally competent. She has been ill recently, and Mrs. Jones, at Mrs. Smith's request, has been handling her business, writing checks to pay bills, entering her safe deposit box, and so forth. The activities of Mrs. Jones have apparently been entirely proper.
Mrs. Jones has now asked Attorney for a copy of Mrs. Smith's will and trust agreement, citing as her authority the general power of attorney. Attorney asked her if she had Mrs. Smith's permission to receive this information. She said she had not asked Mrs. Smith for such permission.
Questions:
1. Should attorney give Mrs. Jones a copy of the will and trust agreement as she requests? If so, should attorney inform Mrs. Smith of her request and of Attorney's compliance?
2. If it would be improper for Attorney to give Mrs. Jones the information she requests, is Attorney obligated to inform Mrs. Smith that Mrs. Jones has made the request?
3. If Mrs. Jones becomes incompetent, should attorney open his file on Mrs. Smith to Mrs. Jones?
4. If Mrs. Smith becomes incompetent, may Attorney continue to serve as her Attorney if Mrs. Jones so requests? In the event, is Attorney's primary obligation to Mrs. Smith or to Mrs. Jones?
Summary:
The attorney should inform Mrs. Smith of Mrs. Jones request and should not provide Mrs. Jones with a copy of the will and trust agreement unless Mrs. Smith consents after consultation. If Mrs. Smith becomes incompetent, the Attorney is authorized to open his file to Mrs. Jones, absent prior instructions to the contrary by Mrs. Smith. He may thereafter continue to serve as an attorney for Mrs. Smith, bearing in mind that he is representing Mrs. Smith and not Mrs. Jones. The lawyer should attempt to continue to communicate directly with Mrs. Smith to the extent her disability will allow.
Opinion:
Two situations are described; one in which Mrs. Smith is competent, the other in which she is incompetent.
If she is competent, then Rule 1.6 dealing with confidentiality of information applies to the situation. Subsection (a) clearly provides that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation. No exception is made for the client who has given a Power of Attorney. Consequently, the attorney is under a duty to consult with Mrs. Smith concerning Mrs. Jones' request and is under no duty to provide any information to Mrs. Jones, even to acknowledge that a Will and Trust Agreement exists, unless and until Mrs. Smith consents after consultation with the attorney.
If Mrs. Smith is or becomes incompetent, then Rule 1.14, dealing with a client under a disability, would apply. Subsection (a) here provides that when a client's ability to make adequately considered decisions in connection with the representation is impaired, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. The comment makes clear that even if a person does have a legal representative, the lawyer should as far as possible accord the represented person the status of a client, particularly in maintaining communication.
It goes on to note that if a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. This committee does not issue opinions on substantive law and, even were the Power of Attorney supplied to the committee, would not determine whether the Power of Attorney itself constituted the attorney-in-fact a "legal representative" as such term is used in Rule 1.14. Since degrees of incompetence vary and may vary from time to time, it seems clear from Rule 1.14 that the attorney should continue at all times, insofar as possible, to maintain communication with Mrs. Smith, even though he may be dealing at some point primarily with Mrs. Jones.
The lawyer must bear in mind, however, that at all times he is representing Mrs. Smith and not Mrs. Jones and should always act in the best interest of Mrs. Smith, recognizing, as does the comment to Rule 1.14, that if he becomes aware that Mrs. Jones is acting adversely to interest to Mrs. Smith, he may have an obligation to correct or rectify Mrs. Jones' misconduct.