You have asked for this Committee's opinion whether you must disclose to opposing counsel certain medical information about your client, even though your client has asked you to keep this information confidential. Based on the information contained in your inquiry, the Committee believes that while you have an ethical duty to maintain your client's confidences, the issue you have presented is essentially one of procedure and therefore will be controlled as such.
You have advised the Committee of the following facts: You are representing a client, who is HIV-positive, in a personal injury case. The defense has requested complete medical information about the client's medical condition prior to the time of the accident. Although it is your intention to comply with the defense's request, your client has instructed you not to reveal the fact that he is HIV-positive. To your knowledge, your client's injuries will not be affected by his HIV condition.
The competing ethical considerations you face arise from Rule 1.6, Confidentiality of Information, and Rule 3.4, Fairness to Opposing Party and Counsel. Under Rule 1.6(a):
A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.
Rule 3.4, on the other hand, states that:
A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.
In view of your client's instruction not to disclose his HIV status to the defense, and the limited exceptions to Rule l.9(a) allowing disclosure, the issue is whether the Rule 3.4(a) prohibition against only unlawful obstruction allows you to withhold this information ethically. Utilizing this framework, it appears that you may be able to avoid disclosure of medical information related to your client's HIV condition based not only on applicable rules of procedure, but also 35 P.S. §7601 et seq., Confidentiality of HIV-Related information; 42 Pa. C.S.A. §5944, Confidential Communications to Psychiatrists or Licensed Psychologists; and 42 Pa. C.S.A. §5945.10, confidential communication to sexual assault counselors. The first statute essentially allows you to withhold certain medical or inflammatory information relating to your client's HIV status, while the last two may also provide the basis for you to argue that because the policy considerations allowing non-disclosure of the information protected by those statutes are applicable to your case, your client similarly is not required to disclose all past medical information. Accordingly, an appropriate procedural response of your choosing such as objections contained in your discovery responses or a motion for a protective order should allow you to fulfill your ethical obligation to your client under Rule 1.6 as well as your obligation to your opponent under Rule 3.4.
You should discuss up-front with your client the risk that the outcome of any procedural effort by you to prevent disclosure may be unsuccessful, in which case disclosure in whole or in part may be required. Given this, if the client refuses to allow you to proceed this way, you have to withdraw your representation or risk a violation of Rule 3.4.
The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.