Legal Ethics Corner: Your Client Has Dementia. Now What?

Andrew Dimitriou, Dimitriou & Associates

dementiaCan an attorney call adult protective services (APS) when the attorney’s client has dementia and needs protection, but has not expressly authorized the APS call? Under certain circumstances, yes.
One of the most difficult things for counsel to see is a client in need of help when the attorney feels helpless to act. An attorney is bound to protect client information and is under a specific obligation to preserve the secrets of the client “at every peril to himself.” (Bus. & Prof. Code, § 6068, subd. (e).)
A recent amendment of section 6068, subdivision (e) allows an attorney under very limited circumstances to disclose information. These circumstances are limited to an imminent threat of great bodily harm. Although most clients who are suffering from dementia are not necessarily under imminent threat of great bodily harm, they are often subject to potential financial harm. The close question of disclosure thus boils down to what is a client confidence as opposed to other information that counsel may disclose. Is information readily available to the public confidential? Only one case has held that information in the public record was nonetheless a client confidence. Several cases from outside California have held that even matters of public record amount to a client secret.

Are an attorney’s observations or conclusions likewise a client confidence? This is a different story. A district court has ruled that an attorney’s conclusions or observations are not client confidences. (Sample v. Yates, 2010 U.S. Dist. LEXIS 97683 (N.D. Cal. Sept. 1, 2010).) Further, an attorney may disclose attorney-client privileged information and client secrets when advancing the client’s interests. In the estate planning arena, the interests of the client can be varied and complex. Arguably it may promote the goals of the client to seek APS involvement where the client’s estate is in jeopardy or under attack by those who do not have the client’s interests in mind.

No case or ethics opinion has discussed whether the client’s consent is necessary to disclose health information to APS on behalf of the client. In this author’s view, while it is still arguably improper to disclose client confidential information even if it is in the public record, an attorney may, based upon his or her conclusions or observations, contact APS on behalf of a client who suffers from dementia to help protect that client’s interests.

ADimitriouAbout the author:

Andrew Dimitriou handles all aspects of general civil litigation, with a particular emphasis in the areas of business, real estate, construction, and tax law.