HELPING THE INCAPACITATED CLIENT: A RESPONSE TO WARREN SINSHEIMER’S "IN THIS LAWYER’S OPINION"

By Peter S. Stern^* and Margaret G. Lodise^**

The last issue of the Quarterly carried a provocative article by Warren A. Sinsheimer, a former chair of the Trust and Estates Section’s Executive Committee, offering suggestions about one approach to dealing with an incapacitated client. Warren’s article invited comment and we believe comment is appropriate.

The background of the Section’s ongoing efforts to deal with the problem of incapacitated clients and the current status of legislative proposals is set forth in the Ethics Alert published in the Fall 2005 edition of the Quarterly. As noted therein, the Trusts and Estates Section has been actively discussing the issue of how to deal with an impaired client for at least ten years. The 1997 Ethics Guide, referred to in Warren’s article, issued a call to align California with those states that had adopted the Model Rules of Professional Conduct 1.14 provisions. In 2002, the Section sent to the fledgling Rules Revision Commission of the State Bar a proposal to adopt such a rule of professional conduct in California. That proposal was not adopted and the Section continued to modify its thinking. In the meantime, as Warren further notes, AB 1101, passed by the Legislature in 2003 and made effective July 2004, amended Business and Professions Code § 6068(e) to permit an attorney to reveal confidences "to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual."¹This criminal act exception carved out in 2003 is presently the only exception permitted to the duty of confidentiality.

In its own deliberations, the Section did not think it was appropriate, in light of California’s long tradition of confidentiality and the very narrow exception created in 2003, to go as far as the ABA Model Rule 1.14, which allows the attorney not only to notify others of a client’s impairment but even to implement a conservatorship over the client. Thus, the Section proposal currently under consideration allows the attorney to "notify those individuals or entities that have the ability to protect the client" and "to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests."