This opinion has been questioned and modified in ethics opinion R-19, effective August 4, 2000.

RI-63

October 10, 1990

SYLLABUS

When a physician releases a patient's medical file to the patient's lawyer on condition that the file only be revealed to the client under certain conditions, and the physician's decision is neither arbitrary, capricious, nor in bad faith but solely for the patient's best interests, the lawyer may refuse to release the files to the patient/client until the physician's stipulations are met.

References: MRPC 1.2(c), 1.4, 1.6(c)(4), 1.14, 1.15, 2.1; CI-716, CI-722, CI-766; OAG, 1978, No 5125, P 454 (May 30, 1978).

TEXT

A lawyer was retained to obtain a client's mental health records and determine whether the mental health agency wrongfully denied the client mental health services. While the agency agreed to release the records to the lawyer, the medical director indicated that release of the records to the client could have a detrimental effect on the client as well as others, and recommended that the client not be given the complete record unless a mental health professional was present to assist and address any client concerns about the treatment received.

The client has requested the entire mental health file obtained on the client's behalf, and has asked that a copy be provided to a social worker identified by the client. The lawyer asks whether the lawyer must comply with the client's demand.

We have consistently held that a lawyer has an ethical duty to deliver the representation file to a client upon request. CI-716, CI-722, CI-766. MRPC 1.15 requires a lawyer to promptly notify a client of property coming into the lawyer's possession, and to deliver to the client the property which the client is "entitled to receive." OAG, 1978, No 5125, P 454 (May 30, 1978), summarizes state law with regard to ownership of medical files and data.

"The ownership of the physical materials composing the actual records is to be distinguished from the information contained therein. While the physical record itself belongs to the health care provider, the patient is entitled to have that information made available to him for copying or inspection . . . . Recognizing this right of access to medical records, attention must be directed to Section 748 of the Mental Health Code [MCL 330.1748] . . . . [T]he consent of the holder of mental health records is a condition precedent to the disclosure of the record to the recipient. If the holder believes that disclosure would be detrimental to the recipient or others, the record or parts of the record can be withheld . . . .

"Thus, it is my opinion that [MCL 330.1748] is constitutional in granting to the record holder the discretion to withhold information when in his judgment disclosure would be detrimental. This decision must not be arbitrary or capricious, however, and must be based on a medical judgment made in good faith and in the patient's best interest. Further, such medical judgment should be appropriately recorded."

We are not told whether the medical director wrongfully withheld the records from the client, nor are we told whether the medical director's concerns about the effect of the records on the client are justified. The comment to MRPC 1.4 states in part:

"In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders."

Under MRPC 2.1 a lawyer is expected to counsel clients in areas other than law, as appropriate to the representation. There is nothing improper in the lawyer counseling the client relating to the medical director's concerns, MRPC 1.2(c). Nor would it be improper for the lawyer to set up a meeting with the client and a health care professional to turn over the records as suggested by the medical director. Since under state law the file is owned by the mental health agency, the medical director may put conditions on the release of the file, but must accede to the patient's access to the information. Since the medical director has not suggested the file not be given to the client, but only that it be given when a health professional is present, the lawyer should implement that request.

If a physician were to require that a medical file not be turned over to a patient under any circumstances, the lawyer may take steps to determine whether that requirement is arbitrary, in bad faith, etc., by providing the record to a specialist physician selected by the client for review and concurrence.

MRPC 1.6(c)(4) allows a lawyer to reveal client confidences and secrets to the extent necessary to prevent a crime. Should the client's reaction to disclosure of the medical records reveal the client's intent to commit a crime, the lawyer may take steps to prevent the crime, including notifying the appropriate officials or other persons who may be endangered by the client. A lawyer may also pursue the appointment of a guardian pursuant to MRPC 1.14, in appropriate circumstances.

Therefore, when a physician releases a patient's medical file to the patient's lawyer on condition that the file only be revealed to the client under certain conditions, and the physician's decision is neither arbitrary, capricious, nor in bad faith but solely for the patient's best interests, the lawyer may refuse to release the files to the patient/client until the physician's stipulations are met.

It is sufficient to deliver the medical records to the client, whereupon the client may share the information with the social worker or anyone else. The lawyer is not required to make copies at the lawyer's expense for delivery to third parties.