Opinion 90-19
(November 1990)

You have asked for an opinion on the following facts: A client of many years who has in the past worked as a domestic in your home had a son who received a severe head injury in an accident several years ago. You indicate, that although the son has never been adjudicated incompetent, in your opinion he has a mental age of no more than twelve. You originally represented the mother and son in a lawsuit arising out of the accident, but referred the case prior to its completion to another attorney who settled the matter. Part of the settlement was $16,000 for the son which was placed in a standard restricted bank account, payable when the son became eighteen. Over the years you attempted unsuccessfully to convince the mother that the funds should be used to purchase a house for her son, but the mother refused to take action necessary to do this. The son has had his eighteenth birthday, and you have heard that the mother has purchased an expensive car, one that you believe she could not afford unless she used her son's money. You have had no contact with either mother or son since the son turned eighteen and are concerned about your ethical responsibilities in this situation. You indicate that you are concerned about maintaining the confidential relationship between the mother and you and are hesitant to breach that confidentiality. Furthermore, you indicate that direct communication with the son would be futile because of his mental impairment.

Rule of Professional Conduct 1.6 governs confidentiality between lawyer and client, and provides for several exceptions to that confidentiality, none of which apply in the case at hand. You have only suspicions about what might have happened, and have virtually no concrete evidence to support those suspicions. Therefore the Committee is of the opinion that you have no ethical duty to take any action in this matter.

If you wish, you may proceed to contact the attorney to whom you referred the mother and son. As you were the referring attorney, the Committee is of the opinion that you may freely discuss your concerns with this other attorney, request that he investigate the matter further, and if necessary file for a guardianship of the son. At that time, if it is discovered that the mother has wrongfully misappropriated the son's funds, appropriate legal action may then be taken.

In closing, the Committee notes that its charge is to address ethical concerns only, and does not opine on any legal obligations you may have, if any, in this situation.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.