Journal Title Abbreviation
Cap. U. L. Rev.
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.
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.
43 Cap. U. L. Rev. 227 (2015)