Avoiding Unintended Disclosure: Representing Clients with HIV and AIDS

AVOIDING UNINTENDED DISCLOSURE: REPRESENTING CLIENTS WITH HIV AND AIDS LASHANDA TAYLOR ADAMS* I. INTRODUCTION When the HIV/AIDS epidemic was initially recognized in the United States, many attorneys wondered what it would mean to represent a client with HIV. As the number of HIV-infected individuals grew, so did the need for attorneys to represent them. Specifically, attorneys questioned whether or not their duty of confidentiality would expose them to civil liability from failing to protect a third party. 1 In response to this concern, several law review articles were written discussing the dilemma faced by atto rneys bound by professional rules of conduct. 2 These articles focused on the needs of the attorney and the public rather than the HIV-infected client, 3 though there was some discussion on clients engaged in risky sexual behavior. 4 Even when no affirmative duty to disclose existed, the discussions rarely focused on the client and his need for confidentiality. Copyright © 2015, LaShanda Taylor Adams . * Associate Professor, David A. Clarke School of Law, University of the District of Columbia. I would like to thank Jamila Shand, my research assistant. I am grateful for the assistance of my colleagues Tanya Asim Cooper, Matthew I. Fraidin and Adrienne Jones, who at various times listened to my ideas, read drafts of the paper and encouraged my progress. I am also appreciative of the input received during the SEALS New Scholars Workshop and from my SEALS mentor William Adams. Last, but certainly not least, I thank UDC-DCSL as an institution for providing support. 1 Anne L. McBride, Deadly Confidentiality: AIDS and Rule 1.6(b) , 4 GEO. J. LEGAL ETHICS 435, 435 (1990) (inquiring whether an attorney could disclose his client’s HIV status to a third party). 2 See, e.g. , W. James Ellison, Legal Ethics Condones AIDS Transfer: A Disclosure Dilemma , 12 WHITTIER L. REV. 327 (1991); Laurie S. Kohn, Note, Infecting Attorney-Client Confidentiality: The Ethics of HIV Disclosure , 9 GEO. J. LEGAL ETHICS 547 (1996); McBride, supra note 1 ; Janine Sisak, Confidentiality, Counseling, and Care: When Others Need to Know What Clients Need to Disclose , 65 FORDHAM L. REV. 2747 (1997). 3 See Rachel Vogelstein, Confidentiality vs. Care: Re-Evaluating the Duty to Self, Client, and Others , 92 GEO. L.J. 153, 163 (2003) (explaining that, in the past, confidentiality rules have been beneficial to individuals at the expense of third parties and the public interest). 4 See McBride, supra note 1, at 445 (“Although engaging in heterosexual intercourse while infected with AIDS is not criminal in many jurisdictions, it does constitute behavior which could result in serious bodily harm.”). 228 CAPITAL UNIVERSITY LAW REVIEW [43:227 Few, if any articles, have focused on the effects disclosure has on the client and the ways in which attorneys can avoid disclosure. Few attorneys representing clients with HIV/AIDS will be faced with the moral dilemma discussed in law review articles written twenty years ago. 5 More commonly, the attorney and client will be in agreement about whether disclosure of the client’s seropositivity is necessary or advisable. When the client has determined that he does not want this confidential information disclosed, the lawyer must make every effort to avoid both intended and unintended disclosure. Due to the nature of the information and the discrimination that the client could possibly face, the attorney must be hyper-vigilant to avoid disclosure and take additional measures to protect the information from disclosure. This article draws from my experiences teaching in and supervising student attorneys enrolled in the UDC HIV/AIDS Legal Clinic (Clinic) and uses examples from the Clinic to discuss a lawyer’s ethical duties to a client with HIV or AIDS. The article begins with a description of the Clinic, a brief overview of the HIV/AIDS epidemic, and a discussion of the history of confidentiality laws protecting HIV-related data from improper disclosure. The article argues that Rule 1.6 of the ABA's Model Rules of Professional Conduct provides a floor to lawyers representing clients with HIV and AIDS and not a ceiling. Lawyers representing clients with HIV and AIDS owe a heightened duty of confidentiality. II. THE UDC HIV/AIDS LEGAL CLINIC Persons with HIV have a need for legal services that are both related and unrelated to their HIV infection. The HIV/AIDS Legal Clinic at the University of the District of Columbia David A. Clarke School of Law (now included as part of the General Practice Clinic) has provided legal services to this population since 1990, 6 making it the second oldest such 5 As will be discussed in Part V.B. of this article, only one state bar ethics opinion, from the Delaware Bar Association Professional Ethics Committee, was issued on the subject. See infra Part V.B. See also Delaware Bar Ass’n Prof’l Ethics Comm., Formal Op. 1988–2 (1988). Ethics opinions are “advisory opinions on the ethical propriety of hypothetical attorney conduct.” California State Bar Standing Comm. on Prof’l Responsibility and Conduct, Formal Op. 11-0004 (2014). 6 UDC-DCSL HIV/AIDS Legal Clinic , FACEBOOK, https://www.facebook.com/ pages/UDC-DCSL-HIVAIDS-LEGAL-CLINIC/112875788731724 ?sk=info (last visited Oct. 5, 2014). The HIV/AIDS Legal Clinic is not currently being offered. The General Practice Clinic allows the school to serve more people, while also maintaining a commitment to the HIV/AIDS community. 2015] REPRESENTING CLIENTS WITH HIV AND AIDS 229 clinic in the nation. 7 The Clinic’s mission is to provide comprehensive, holistic legal services to District of Columbia residents infected with and affected by HIV/AIDS. 8 The Clinic was established less than a decade after AIDS was formally recognized by medical professionals in the United States 9 and three years after the FDA approved the first drug for the treatment of HIV. 10 In 1990—the year that the Clinic began representing persons with HIV and AIDS—there were 100,000 reported AIDS cases in the United States 11 and an estimated 8 million people worldwide living with HIV. 12 In 1993, the life expectancy for a symptomless person infected with HIV was less than seven years. 13 By contrast, there are currently 35 million infected persons world-wide, 14 and an American diagnosed with HIV can expect to live for approximately 24 years on average. 15 Traditionally, the Clinic’s work focused on compassionate release for HIV-infected prisoners, 16 social security, 17 and end-of-life planning, 7 Id. See also U.D.C. David A. Clarke School of Law HIV/AIDS Legal Clinic , LAWHELP.ORG, http://www.lawhelp.org/dc/organization/udc-david-a-clarke-school-of-lawhiv-aids-leg/life-and-estate-planning-guardianship/powers-of-attorney (last visited Jan. 13, 2015); General Practice Clinic , UDC DAVID A. CLARKE SCHOOL OF LAW, http://www.law.udc.edu/?page=GenPracticeClinic (last visited Jan. 13, 2015). 8 General Practice Clinic , UDC DAVID A. CLARKE SCHOOL OF LAW, http://www.law.udc.edu/?page=GenPracticeClinic (last visited Oct. 5, 2014). 9 The CDC began referencing AIDS in 1982. See Centers for Disease Control, Update on Acquired Immune Deficiency Syndrome (AIDS) — United States , 31 MORBIDITY & MORTALITY WKLY. REP., 507–08 (1982). See also id. at 513–14. 10 In 1987, AZT became the first approved treatment for HIV disease. See Overview of HIV Treatments , AIDS.GOV, http://aids.gov/hiv-aids-basics/just-diagnosed-with-hiv-aids/ treatment-options/overview-of-hiv-treatments (last visited Oct. 5, 2014). 11 A Timeline of AIDS , AIDS.GOV, http://aids.gov/hiv-aids-basics/hiv-aids-101/aids-timeline (last visited Oct. 5, 2014). 12 Worldwide HIV & AIDS Statistics , AVERT, http://www.avert.org/worldwide-hiv-aids-statistics.htm (last visited Oct. 6, 2014). 13 See, e.g. , Mike Stobbe, HIV Patients Live Years after Diagnosis , USA TODAY (Nov. 11, 2006, 3:59 AM), http://usatoday30.usatoday.com/news/health/2006-11-11-hivstudy_x.htm. 14 Worldwide HIV & AIDS Statistics , supra note 12. 15 Stobbe, supra note 13. 16 See William B. Aldernberg, Note, Bursting at the Seams: An Analysis of Compassionate-Release Statutes and the Current Problem of HIV and AIDS in U.S. Prisons and Jails , 24 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 541, 548 (1998) (explaining that compassionate release is the early release of HIV-infected prisoners from jail as they near death). 230 CAPITAL UNIVERSITY LAW REVIEW [43:227 including last will and testaments, 18 living wills, 19 powers of attorney, 20 and standby guardianships. 21 However, as the average life expectancy has increased by more than fifteen years, 22 the demand for such services has decreased. 23 As a result, HIV-infected clients present legal issues either completely unrelated or only tangentially related to their HIV-status. While the client’s HIV status may have little to no bearing on the case, it does, however, affect the attorney–client relationship. Through our work 17 Persons who have HIV/AIDS and cannot work may qualify for disability benefits from the Social Security Administration. Paying for HIV Care , WOMENSHEALTH.GOV (July 1, 2011), http://womenshealth.gov/hiv-aids/living-with-hiv-aids/paying-for-hiv-care.html. The Social Security Administration provides disability benefits under two programs: the Social Security disability insurance program for people who paid Social Security taxes; and the Supplemental Security Income program for people who have little income and few resources. Id. But see Adrienne Jones, The More Things Change, the More They Stay the Same: A Section 504 Examination of the Social Security Administration’s Use of 1993 Medical Criteria to Determine Disability in 2014 , 22 AM. U. J. GENDER SOC. POL’Y & L. 651, 652 (2014) (“Access to social security benefits for individuals asserting HIV infection-related claims has decreased considerably in recent years.”). 18 A last will and testament is “[t]he instrument ultimately fixing the disposition...