Works in Progress Group #19 Lawyering & Elder Care

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Teaching Confidentiality: The Importance of Explaining “Impliedly Authorized” Disclosures to Students and Clients

A lawyer cannot accomplish a client’s objectives without revealing client information. Lawyers often reveal much more than they conceal about their clients’ matters, and properly so. What’s more, in most matters, the client neither expects nor desires the lawyer to maintain strict confidentiality. The client generally expects the lawyer to tell her story in order to achieve her objectives.

In law school ethics training and in conversations with clients about confidentiality, however, lawyers and professors tend to focus excessively on lawyers’ secret-keeping obligations. Interviewing and counseling texts recommend that we provide clients with a simple assurance of confidentiality and provide little guidance on discussing with clients the many ways we will share their information. Professional responsibility texts teach students about confidentiality obligations but do not teach them how and why they may reveal client information. In particular, we rarely teach students or inform clients about the permissibility of disclosures that are “impliedly authorized in order to carry out the representation,” which is the primary pathway for most information disclosures and without which lawyers could not function in day-to-day practice.

Professor Jones' article attempts to address that gap by explaining the scope of lawyers’ implied authority to reveal confidential client information, explaining why this doctrine should occupy a more central place in law school training and lawyer-client communications, and suggesting ways of communicating with clients about confidentiality that expand upon the conventional approaches set forth in interviewing and counseling texts and recent scholarship.

Minding the Gap: Creating an Infrastructure to Maximize Elder Capacity

Most people hope they will never need a surrogate decision maker, or to be deemed “incapacitated”. Just ask Britney Spears. Capacity assessments are assumed to be viewed as fluid and flexible, something that is not static and can be enhanced. Yet, our legal structure to accommodate an individual’s incapacity remains rigid and fixed. The power of attorney has become the universal estate planning tool to protect against future incapacity. It is touted to empower clients and avoid the more drastic impact of a guardianship. Unfortunately, all too often this “simple but powerful” instrument is instead used to misappropriate the principal’s property or usurp their autonomy due to a lack of oversight or regulation. Both sides of this polarized spectrum – an unregulated and unsupervised power of attorney and the overly restrictive guardianship court process – are based on the false dichotomy that capacity is a zero-sum game, meaning you either have it, or you do not. There is no middle ground in our legal framework to accommodate those with partial capacity or gradient levels of incapacity.

Professor Mann's article posits that our elders require a more flexible framework and infrastructure to address the evolving nature of capacity. Purported solutions could include incorporating more specific and varying definitions of “incapacity” within a power of attorney, creating an administrative process to handle regulation or monitor these documents, or incorporating a multidisciplinary approach to capacity determinations.