LEO: Attorney - Client Relationship - LE Op. 1314

 

Attorney - Client Relationship - Representing Client Within the

Bounds of the Law: Attorney Advising Client to Sign Blank

Medical Authorizations.

 

February 15, 1990

 

Your question arises out of a matter involving federal administrative

practice. You have advised that, in representing a client, an attorney has

exhausted federal administrative remedies and obtained a remand to

Defendant Secretary of Health and Human Services from the United States

District Court, pursuant to 42 U.S.C. 405(g). Subsequent to the court's

action, a federal administrative employee requested that Plaintiff sign

blank authorizations for medical, psychological and psychiatric

evaluations. You have requested that the committee consider the propriety

of the attorney advising his client to sign such blank authorizations

under the circumstances. You have stated that in your opinion a client

should know in advance to which consultant he/she would be referred.

 

The Committee directs your attention to DR:7-101(A)(1), the appropriate

and controlling rule relative to your inquiry, which provides in part that

a lawyer shall not intentionally fail to seek the lawful objectives of his

client through reasonably available means permitted by law and the

Disciplinary Rules. The rule states, however, that "a lawyer does not

violate this Disciplinary Rule ... by acceding to reasonable requests of

opposing counsel which do not prejudice the rights of his client ...." (

emphasis added) In addition, DR:7-101(B)(1) provides that in

representing a client zealously, a lawyer may exercise his professional

judgment to limit or vary his client's objectives and waive or fail to

assert a right or position of his client, with the express or implied

consent of the client.

 

In the opinion of the Committee, the question of whether it is proper for

an attorney to counsel his client to sign blank authorization forms for

evaluation is a factual determination of competence, the lack of which may

lead to a claim of malpractice. Such a determination is beyond the purview

of this Committee. The Committee believes that the lawyer's duty of

loyalty to the client requires the lawyer to protect and preserve the

client's right to avoid compromising his/her independence in making

decisions as to specifically which evaluations he/she chooses to allow.

Thus, the attorney should be mindful of the need to advise the client of

all consequences should he/she choose to sign blank authorizations.

 

Committee Opinion February 15, 1990