20000208 | Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri

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Informal Opinion Number: 20000208

Rules: 4–1.6

Client-Lawyer Relationship

Confidentiality of Information

Subject: Confidentiality

Summary: discussing former client's competency with client's current lawyer

Attorney prepared a will for Client several years ago. There has been no contact between Attorney and Client since that time. Attorney was recently contacted by a second attorney and that attorney requested that Attorney provide information about Client’s mental condition on or about that time. The second attorney is representing Client in a medical malpractice action.

Question 1: May Attorney discuss competency without a court order if Client is capable of giving consent?

Question 2: May Attorney discuss competency without a court order if Client is incapable of giving consent?

Question 3: May Attorney discuss competency without a court order if Client is incapable of giving consent but a child of Client is named as attorney-in-fact under a durable power of attorney?

Answer 1: Yes. If Client has the capacity to consent to the disclosure and does so, Rule 4 dash–1.6 would not preclude Attorney from discussing Client’s competency.

Answer 2: No. Attorney may not reveal information relating to Attorney’s representation of Client if Client is incapable of consenting to the disclosure. If a guardian has been appointed, Attorney may discuss Client’s competency, if the guardian consents.

Answer 3: It would depend on the exact terms of the durable power of attorney.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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