Must a lawyer give a former client his entire file, including mental-health records a treating physician marked 'not to be shown to the patient'?

Plain-English summary

A lawyer limiting his practice to Social Security disability received, as part of representing a client, the client's mental-health records, which the treating physician had marked "not to be shown to the patient." After the representation ended, the former client demanded copies of his entire file, including all medical records it contained. The question was whether the lawyer could ethically refuse to release the mental-health records given the physician's instruction.

The committee analyzed the duty under Rule 1.16(d), which requires a lawyer to surrender papers and property to which the client is entitled on termination. It walked through the state statutes governing access to mental-health records, including provisions allowing a physician to refuse a patient access where the attending physician determines in writing that the information is detrimental to the treatment regimen, or to furnish a summary instead of the full record where release would harm the patient's well-being, and giving physicians immunity for good-faith releases. The committee observed that the mental-health center had not taken the statutory steps available to it to address harmful disclosure, and was instead trying to place on the lawyer the responsibility to withhold or redact records that were now part of his file, which he could not ethically do under Rule 1.16(d) once the representation had ended.

The committee concluded that under Rule 1.16(d) the lawyer must release his file to the former client regardless of the physician's restriction, and that mental-health professionals have their own means under the law to protect the patient's treatment regimen and sensibilities without placing the burden on the lawyer to violate a rule of professional conduct.

Currency note

This opinion was issued in 1998, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer turn over a former client's whole file on request?

A: Per Rule 1.16(d), the committee concluded the lawyer must surrender the papers and property to which the client is entitled, here the entire file, on termination of the representation.

Q: Does a physician's "not to be shown to the patient" stamp let the lawyer withhold records?

A: No. The committee concluded the lawyer cannot ethically withhold or redact the records under Rule 1.16(d); the physician's restriction does not relieve the lawyer of that duty.

Q: How are the patient's interests in the sensitive records protected?

A: The committee noted that mental-health professionals have statutory means (such as a written detriment determination or furnishing a summary) to protect the patient, rather than shifting the burden onto the lawyer.

Background and rules framework

The opinion applied South Carolina RPC 1.16(d) (Rule 407, SCACR), corresponding to Model Rule 1.16(d), which requires surrender of the client's papers and property on termination. It read that duty against the state mental-health-records statutes (S.C. Code Ann. Sections 44-22-110(B), 44-115-30, 44-115-60, and 44-115-140), concluding the statutes place protective options on the physicians, not the lawyer.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.16(d) (Rule 407, SCACR) / Model Rule 1.16: surrender of the client's file on termination.

Statutes:

• S.C. Code Ann. Section 44-22-110(B): refusing patient access to records detrimental to treatment.
• S.C. Code Ann. Section 44-115-30: patient's right to a copy of the medical record on written authorization.
• S.C. Code Ann. Section 44-115-60: physician furnishing a summary where full release would harm the patient.
• S.C. Code Ann. Section 44-115-140: physician immunity for good-faith release.

See also

• SC Bar Ethics Op. 02-11: Withholding a Client File
• SC Bar Ethics Op. 00-02: Six-Year Record Retention

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-10/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 98-10

Lawyer limits his practice to social security disability. As part of representing a client in a claim, lawyer is sent his client's mental health records. These records are marked "not to be shown to the patient" by the treating physician. Client is then released by Lawyer. Client demands copies of his entire file, including all medical records it contains.

QUESTION:
Can a lawyer ethically refuse to release mental health client records to his client when the client's doctor has instructed the attorney to the contrary?

DISCUSSION:
Rule 407, SCACR, Rules of Professional Conduct, Rule 1.16(d) requires a lawyer to surrender papers and property to which the client is entitled upon termination of representation. In this inquiry, the lawyer has as part of the legal file mental health records concerning his former client that the treating physician has stamped "not to be shown to the patient."

The difficulty arises in light of S.C.Code Ann. §44-22-110(B), which states that "[p]atients... may be refused access to... (2) information in medical records if the attending physician determines in writing that the information is detrimental to the patient's treatment regimen." Section 44-115-30 further complicates matters by allowing that... "[a] patient or his legal representative has a right to receive a copy of his medical record... when accompanied by a written authorization from the patient or his legal representative to release the record."

In this inquiry, the lawyer received a mental health record that contained information that the mental health center did not deem appropriate for the client/patient to see, however the center did not takes steps under the law that specifically addresses its physicians' legal and medical responsibilities as concerns harmful disclosure of mental health records. Section 44-115-60 allows that "... a physician may refuse to release a copy of the entire medical record and may furnish instead a summary or portion of the record when he has a reasonable belief that the release of information contained in the entire record would cause harm to the patient's emotional or physical well-being...."

The physicians have immunity from civil, criminal, and disciplinary liability from a good faith release of information when they respond to written authorization from the patient or the patient's representative. SC Code Ann. §44-115-140. However in this situation they are seeking to impose on the lawyer the responsibility to not release their records, now part of his file, to his client or to redact it , neither of which he can ethically do under Rule 1.16(d) once he has terminated his relationship with his client.

CONCLUSION:
Under Rule 1.16(d), the lawyer must release his file to the former client regardless of the physician's restriction. Mental health professionals have means under the law to protect the patient's treatment regimen and sensibilities without seeking to place the burden on the lawyer to violate a rule of professional conduct.