Page 40 - January 2019 | Cleveland Metropolitan Bar Journal

ETHICS PErSPECTIvE
Second, and more challenging, is if a client action to protect the client.” RPC 1.14(b) Duty to communicate
will not consent to or instructs their attorney “When taking protective action, a lawyer Finally, when an attorney decides to make
not to report abuse. Under Rule 1.6(b)(1), an is impliedly authorized under Rule 1.6(a) a mandatory report about elder abuse
attorney may reveal confidential information to reveal [confidential] information but without the consent of the client, the
to prevent reasonably certain death or only to the extent reasonably necessary to duty of communication requires that the
substantial bodily harm. Depending on the protect the client’s interests.” RPC 1.14(c) attorney must discuss the matter with the
circumstances, an attorney has discretion to Comment [5] to Rule 1.14 expressly client and inform them about the report.
determine whether the risk of harm created includes “consulting with adult-protective RPC 1.4 While Rule 1.4, Comment 6
by suspected abuse, neglect or exploitation of agencies” as a protective action. provides that delaying transmission of
the client justify reporting to APS even if the Fourth, without client consent, without information may be possible “if the client
client refuses consent or instructs otherwise. the risk of death or substantial bodily would be likely to react imprudently to
Third and potentially relevant for an harm and without issues of diminished an immediate communication,” this only
abused elder, is a situation in which a capacity, if an attorney has reasonable delays the necessary conversation with
client refuses consent but their capacity cause to believe a client is being abused, the client.
to make adequately considered decisions neglected or exploited, ORC 5101.63 is a In Cuyahoga County, the Adult Protective
is diminished, whether because of mental law that likely will require the disclosure Services web portal for reporting elder
impairment or for some other reason. Rule of client confidential information in abuse is https://dsas.cuyahogacounty.us/
1.14 and its comments provide overarching making a mandatory report. Rule 1.6(b) adultscreening/ and the 24-hour hotline is
guidance that “the attorney shall, as far as (6), permits an attorney to disclose (216) 420-6700.
reasonably possible maintain a normal confidential information “to comply
client-attorney relationship.” RPC 1.14(a) with other law or court order.” The Ohio
However, “when the attorney reasonably Supreme Court, interpreting prior similar Jean McQuillan is an Assistant Professor
believes that the client has diminished Disciplinary Rules has held that disclosure of Law at Case Western Reserve University
capacity, is at risk of substantial physical, of confidential information required by teaching legal ethics after 21 years of private
financial or other harm unless action is other law does supersede the duty of practice in Cleveland. She served on the Board
taken and cannot adequately act in the confidentiality. Allen County Bar Ass’n v. of Professional Conduct of the Supreme Court
client’s own interest, the attorney may take Williams, 95 Ohio St. 3d 160, at 162, 2002 of Ohio from 2000–2009. She has been a CMBA
reasonably necessary protective action, Ohio 2006, 766 N.E.2d 973, at 975 (Ohio member since 1980 and can be reached at jean.
including consulting with individuals 2002)(discussing the “required by law” mcquillan@case.edu or (216) 368-1673. Any
or entities that have the ability to take exception under DR 4-101(C)(2)) opinions expressed herein are solely her own.

We salute those who remind us that age
holds no monopoly on wisdom.

Klevis Bakiajevis Bakiaj
Kl M Andrew Clevesndrew Cleves Alan Dailide
Alan Dailide
A
Megan Bennettegan Bennett

Angela Lydondon
Christina Niroristina Niro
Michael Nunnari, Jr.ichael Nunnari, Jr.
J Joseph Guentheroseph Guenther T Thomas Haren homas Haren Angela Ly Ch M

Ry
B B Bradley Reedradley Reedradley Reed A Allison Taller llison Taller Jonathan Sc Ryan Smithan Smith Mia Ulerya Ulery Justin Younkerounker
Mi
Jonathan Scandlingandling
Justin Y
Reich
FrantzWard.com

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40 | Cleveland Metropolitan Bar Journal clemetrobar.org