Can a North Carolina lawyer tell a minor client's parents about the evidence and plea offer when the minor is tried as an adult and objects?

Plain-English summary

A lawyer was defending a 15-year-old being tried as an adult on criminal charges. The State offered a plea to a reduced charge, and the minor did not consent to disclosing the evidence against him or the plea offer to his parents. The committee was asked whether the lawyer had to disclose that information to the parents.

The opinion held the lawyer did not. Rule 1.14(a) requires a lawyer to maintain a normal client-lawyer relationship with a client whose ability to make decisions is impaired by minority, so the lawyer owes a minor client the duty of confidentiality and may not disclose confidential information to the minor's parents unless an exception in Rule 1.6(d) applies. Rule 1.6(d)(3) permits disclosure when permitted by law or court order, and a lawyer for a minor may disclose to the minor's legal guardian, over the minor's objection, if necessary for the guardian to make a legally binding decision about the representation (Comment [3] to Rule 1.14); but the lawyer may withhold information from a guardian who is acting adversely to the child or where the information is not needed for the decision. Here, because the minor was being tried as an adult, his parents' consent was not necessary for him to make a binding decision about the plea, so the lawyer had to honor the minor's request and not disclose to the parents. The committee added that if the parents are not the minor's legal guardians but the minor instructs the lawyer to tell them about the plea offer, the lawyer may do so, because Rule 1.6(d)(2) permits disclosure with the client's consent.

Currency note

This opinion was issued in 1999, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rules under the numbering then in effect (Rule 1.14(a) and Comment [3]; Rule 1.6(d)(2) and (d)(3)). The confidentiality and diminished-capacity provisions were renumbered and revised in later amendments. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule subsection mentioned here.

Common questions

Q: Does a North Carolina lawyer owe confidentiality to a minor client?

A: Yes. The opinion held that under Rule 1.14(a) the lawyer must maintain a normal client-lawyer relationship with a minor client and owes the duty of confidentiality, disclosing to the parents only if a Rule 1.6(d) exception applies.

Q: Can the lawyer tell the parents the plea offer over the minor's objection?

A: Not here. Because the minor was being tried as an adult and the parents' consent was not needed for a binding decision, the opinion held the lawyer had to honor the minor's objection and not disclose to the parents.

Q: When could a lawyer disclose to a minor's guardian over objection?

A: The opinion held a lawyer may disclose to a minor's legal guardian, over the minor's objection, if necessary for the guardian to make a legally binding decision about the representation, but may withhold information if the guardian is acting adversely to the child.

Q: Can the lawyer tell the parents if the minor asks the lawyer to?

A: Yes. The opinion held that if the minor instructs the lawyer to disclose the plea offer to his parents, the lawyer may do so under Rule 1.6(d)(2), which permits disclosure with the client's consent.

Background and rules framework

The opinion applied North Carolina Rule 1.14 (client with diminished capacity, including minority) and Rule 1.6 (confidentiality, including the consent and "permitted by law" exceptions), the analogues to Model Rules 1.14 and 1.6, to a minor criminal defendant tried as an adult. It relied on Comment [3] to Rule 1.14 for disclosure to a legal guardian.

Citations and references

Rules of Professional Conduct:

• MR 1.14 (client with diminished capacity) / NC Rule 1.14(a), Comment [3]
• MR 1.6 (confidentiality of information) / NC Rule 1.6(d)(2), (d)(3)

See also

• ABA Formal Op. 96-404: Client Under a Disability
• ABA Formal Op. 500: Language Access in the Client-Lawyer Relationship

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/98-formal-ethics-opinion-18/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Attorney A is defending Minor, who is 15 years old, against criminal charges. Minor is being tried as an adult. The State has offered Minor a plea to a reduced charge. Minor does not consent to the disclosure to his parents of any of the evidence against him or the plea offer. Is Attorney A required to disclose the information to Minor's parents?

Opinion #1:

Rule 1.14(a) of the Revised Rules of Professional Conduct requires a lawyer to "maintain a normal client-lawyer relationship with the client" although "[the] client's ability to make adequately considered decisions in connection with the representation is impaired...because of minority ...." Therefore, a lawyer owes the duty of confidentiality to a minor client and may not disclose confidential information to minor's parents unless there is an applicable exception in Rule 1.6(d) permitting disclosure. Rule 1.6(d)(3) permits a lawyer to reveal confidential client information when permitted by law or court order. A lawyer representing a minor may disclose confidential information to the minor's legal guardian, over the minor's objection, if the disclosure is necessary for the guardian to make a legally binding decision about the subject matter of the representation. See Rule 1.14, cmt. [3]. However, the lawyer may withhold confidential information from the legal guardian if the lawyer believes that the guardian is acting adversely to the interests of the child or the information is not necessary to make a decision about the representation.

In the present inquiry, Minor is being tried as an adult and the consent of Minor's parents is not necessary for Minor to make a legally binding decision about the plea agreement. Therefore, Attorney A must honor Minor's request and not disclose the information to Minor's parents.

Inquiry #2:

If Minor's parents are not his legal guardians but Minor instructs Attorney A to disclose the plea offer to his parent or parents, may Attorney A do so?

Opinion #2:

Yes, Rule 1.6(d)(2) permits a lawyer to disclose confidential information with the consent of the client.