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 98-10
Lawyer limits his practice to social security disability. As part of representing a client in a claim, lawyer is sent his client's mental health records. These records are marked "not to be shown to the patient" by the treating physician. Client is then released by Lawyer. Client demands copies of his entire file, including all medical records it contains.
QUESTION:
Can a lawyer ethically refuse to release mental health client records to his client when the client's doctor has instructed the attorney to the contrary?
DISCUSSION:
Rule 407, SCACR, Rules of Professional Conduct, Rule 1.16(d) requires a lawyer to surrender papers and property to which the client is entitled upon termination of representation. In this inquiry, the lawyer has as part of the legal file mental health records concerning his former client that the treating physician has stamped "not to be shown to the patient."
The difficulty arises in light of S.C.Code Ann. §44-22-110(B), which states that "[p]atients... may be refused access to... (2) information in medical records if the attending physician determines in writing that the information is detrimental to the patient's treatment regimen." Section 44-115-30 further complicates matters by allowing that... "[a] patient or his legal representative has a right to receive a copy of his medical record... when accompanied by a written authorization from the patient or his legal representative to release the record."
In this inquiry, the lawyer received a mental health record that contained information that the mental health center did not deem appropriate for the client/patient to see, however the center did not takes steps under the law that specifically addresses its physicians' legal and medical responsibilities as concerns harmful disclosure of mental health records. Section 44-115-60 allows that "... a physician may refuse to release a copy of the entire medical record and may furnish instead a summary or portion of the record when he has a reasonable belief that the release of information contained in the entire record would cause harm to the patient's emotional or physical well-being...."
The physicians have immunity from civil, criminal, and disciplinary liability from a good faith release of information when they respond to written authorization from the patient or the patient's representative. SC Code Ann. §44-115-140. However in this situation they are seeking to impose on the lawyer the responsibility to not release their records, now part of his file, to his client or to redact it , neither of which he can ethically do under Rule 1.16(d) once he has terminated his relationship with his client.
CONCLUSION:
Under Rule 1.16(d), the lawyer must release his file to the former client regardless of the physician's restriction. Mental health professionals have means under the law to protect the patient's treatment regimen and sensibilities without seeking to place the burden on the lawyer to violate a rule of professional conduct.