Tuesday, March 12, 2013

"My Client is HIV Positive"

Stephen Gillers, Regulation of Lawyers
"My Client is HIV Positive"

The lawyer’s dilemma in this problem raise critical issues about client confidentiality and an attorney’s obligation to prevent harm to others. The situation raises a number of sub-issues to analyze before Mr. Noonan gives Ken advice.
            The first issue to determine is whether Ken is Mr. Noonan’s client. Although each jurisdiction’s definition of who is a client is dependent on that jurisdiction’s case law, Maryland case law, for example, provides that the attorney-client relationship attaches when “a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and … the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.” Here, because Mr. Noonan meets Ken in jail and they discuss his bail application, it is clear that both parties believe that Mr. Noonan will be providing legal services to Ken. There is little doubt here that Ken is Mr. Noonan’s client.
The second issue is whether Ken’s disclosure to Mr. Noonan that he is HIV positive is “information relating to the representation of” Ken (Model Rule 1.6(a)). Ken’s disclosure comes up in the context of Mr. Noonan and Ken’s discussion of Ken’s forthcoming bail application. Although Ken may or may not want Mr. Noonan to disclose the information to the judge, it was disclosed as part of a conversation relating to strengthening his bail application and therefore is likely considered related to representation.
The third issue is whether confidentiality attaches here. Under Model Rule 1.6 confidentiality attaches here unless one of three circumstances is present: informed consent, implied authorization, or an exception to the rule. Ken has not granted consent to Mr. Noonan to disclose his HIV status under Model Rule 1.0(e). On the contrary, he has expressly instructed Mr. Noonan not to disclose the information. Likewise, Mr. Noonan does not have implied authorization here under Model Rule 1.6(a) because Ken’s status is not pertinent to resolving the case at issue nor is it a fact in dispute in this case. The next step is determining whether an exception to the confidentiality rule applies.
            Under Model Rule 1.6(b)(1), Mr. Noonan may disclose the information in order to “prevent reasonably certain death or substantial bodily harm.” The Comment to the Rule note that the test for this rule’s applicability is whether “the harm is reasonably certain to occur, and if it will be suffered imminently, or if there is a present and substantial threat that a person will suffer.” This analysis is the crux of Mr. Noonan’s decision-making process. Although HIV is a serious illness and contraction of HIV would likely constitute serious bodily injury and could even lead to death, it is unclear from the information provided whether such harm is reasonably certain to occur. Ken says that he takes precautions, but Mr. Noonan does not believe he seems the “careful type.” While the decision whether or not to disclose is within Mr. Noonan’s discretion under the Model Rules, he would likely need more information from Ken about his lack of precautions in order to make a determination that transmission of HIV was “reasonably certain to occur.” Absent additional information, Mr. Noonan may be subject to sanction for breaching Ken’s confidentiality.
            Under Model Rule 1.16, Mr. Noonan would have to withdraw from representing Ken if his representation would amount to “counseling or assisting” Ken in “criminal or fraudulent acts.” A number of jurisdictions retain statutes that make willful or reckless transmission of HIV a criminal act. If Ken’s jurisdiction had such a statute, Mr. Noonan could potentially be assisting Ken in committing a crime and therefore would be subject to discipline if he failed to withdraw representation. Under Model Rule 1.6(b)(2), Mr. Noonan may disclose the information in order to “prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services.” However, it is not clear how Ken would be using Mr. Noonan’s services in furtherance of the fraud or crime so the applicability of this rule is debatable. Relatedly, however, under Model Rule 1.6(b)(3), if a client commits a crime or fraud while employing the lawyer, the lawyer can disclose information to prevent or mitigate injury. Again, if the jurisdiction has a criminal transmission statute, and he knows that Ken’s actions would violate the statute, he would be authorized to disclose the information to Anna or law enforcement. Because we don’t know if such a statute exists here, or whether Mr. Noonan could be reasonably certain there would be substantial injury, these rules’ applicability is unclear. It does not appear that exceptions 1.6(b)(4) or (5).
            Under Model Rule 1.6(b)(6), disclosure is permitted to “comply with other law or a court order.” Here, if the jurisdiction had a theoretical statute that compelled third-party disclosure of HIV status, Mr. Noonan would be permitted to disclose in order to comply with the statute or required to disclose if the statute so required.
            An additional issue is whether Mr. Noonan has obligations to Anna as his client to disclose such information. Under Rule 1.8(f)(3), “a lawyer should not accept compensation for representing a client from one other than the client unless…(3) information relating to representation of a client is protected as required by Rule 1.6.” Under this Rule, although Mr. Noonan is receiving compensation from his former client, Anna, Mr. Noonan still retains a duty of confidentiality to Ken. An attorney-client relationship “does not depend on the payment of a fee.” Perez v. Kirk & Carrigan, 822 S.W.2d 261 (Tex. Ct. App. 1991). Therefore, under ABA Formal Op. 08-450, Mr. Noonan need not withdraw because his representation of Ken is unrelated to his past representation of Anna and does not create a conflict of interest. Importantly, however, Mr. Noonan does retain a duty of confidentiality to Anna not to disclose information relating to his representation of her before the probate court.

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