Avoiding Unintended Disclosure: Representing Clients with HIV and AIDS

• Author: LaShanda Taylor Adams
• Position: 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...
• Pages: 227-258

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

attorneys 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 McBri de, 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 CLIN IC

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 States9 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 States11 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-law-

hiv-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-hiv-

study_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).