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ETHICS OPINION 698-1993 DISCLOSURE OF MEDICAL EVIDENCE IN SOCIAL SECURITY HEARING
NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 698
TOPIC: DISCLOSURE OF MEDICAL EVIDENCE IN SOCIAL SECURITY HEARING
DIGEST: LAWYER REPRESENTING CLAIMANT IN SOCIAL SECURITY HEARING MAY WITHHOLD MEDICAL INFORMATION, PROVIDED NO REQUEST IS MADE FOR SUCH INFORMATION AND SUCH INFORMATION DOES NOT CONSTITUTE KNOWLEDGE THAT CLAIM IS FALSE
CODE: DR 4-101(A) & (B)(2); DR 7” 102(A)(2), (3), (4), (5) & (7); DR 1-102(A)(4); DR 2- 110(B)(2)
QUESTION
A lawyer represents claimants seeking Social Security disability benefits. The claims are heard first at an administrative level and later by an administrative law judge. The question is whether a lawyer is obliged to produce all relevant medical information about the claimant in this process, including information obtained from the clients which may be detrimental to the clients’ claims, if no request is made for the information.
OPINION
The question implicates two interests under the Lawyer’s Code of Professional Responsibility (the “Code”): a lawyer’s duty under Canon 4 to preserve the confidences and secrets of a client and a lawyer’s duty under Canon 7 to represent a client zealously within the bounds of the law. Whether these interests collide in the circumstances presented depends on whether the disclosure of medical information is necessary to avoid the lawyer’s presentation of a false claim for disability benefits.
We begin our discussion with a caveat. We assume that the inquirer is familiar with the statutes and regulations governing claims for Social Security benefits. We do not purport to address here whether those statutes and regulations require a claimant (or counsel for one) to disclose relevant medical evidence in connection with a claim. DR 7-102(A)(3) provides that, in the representation of a client, a lawyer shall not “conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.” This means that a lawyer must comply with the letter and the spirit of any statutes and regulations governing disclosure in proceedings for Social Security benefits. For our purposes here, we assume solely for discussion that no such statutes or regulations exist, but we caution that the applicability of statutes and regulations is an important threshold concern that the inquirer must consider.
The inquirer’s question is whether a lawyer must disclose relevant medical evidence when no request is made for such disclosure. If no law independently mandates disclosure, then nothing in the Code requires a lawyer to volunteer evidence — even evidence relevant to the matter in issue — to a tribunal or other person before whom the lawyer appears on behalf of a client. A lawyer’s obligation is to present whatever evidence exists which, in the lawyer’s professional judgment, best advances the client’s interests in the proceeding. That the lawyer may have been given access by the client to other evidence that does not support the client’s position does not alter this obligation. To the contrary, if such other evidence is provided by, or upon instructions from, the client, the lawyer may have a duty not to disclose such evidence. DR 4-101(A) & (B)(2).
It follows that, in a proceeding before an administrative law judge or other official on an application for Social Security disability benefits, a lawyer need not disclose relevant medical information about the client if the administrative judge or officials do not request such information and if the statutes or rules governing such proceedings do not independently require disclosure. Thus, for example, if a lawyer knows of two conflicting medical reports — one helpful to the client, one unhelpful — then, subject to the qualifications described below, the lawyer may disclose only the report that aids the client’s claim. And the lawyer may not disclose any information protected as a confidence or secret unless the client consents .
There is an important premise to these conclusions, however. A lawyer need not volunteer relevant evidence harmful to a client’s interests, but neither may a lawyer knowingly make a false statement of fact, use perjured testimony or false evidence, or assist a client in fraudulent conduct. DR 7-102(A)(4), (5) & (7). If a lawyer is able to advance a good faith claim for benefits despite knowledge of contrary medical reports, and if none of the evidence or statements made in support of that claim is known to be false in light of such knowledge, then nothing in the Code precludes assertion of the claim. If, however, the lawyer’s knowledge of the adverse medical information constitutes knowledge that the claim itself is false, then the lawyer is not free to advance the claim and must withdraw from the representation. DR 1-102(A)(4); DR 2- 110(B)(2)? DR 7-102(A)(2).
Whether the undisclosed medical information constitutes such knowledge will depend on all the facts known to the lawyer. That reports from two different sources happen to contradict each other, for instance, would not ordinarily represent knowledge of anything but that two doctors disagree. Even two conflicting reports from the same physician may not necessarily be sufficient to constitute a lawyer’s knowledge that a claim has no merit. Rather, as in any case, a lawyer must make a good faith inquiry into the facts and must assess whether an arguably valid claim exists for benefits based on the lawyer’s knowledge of all relevant circumstances. If such a claim may be made without disclosure of the medical evidence, the lawyer is free to assert it.
The circumstances prompting this inquiry provide a useful illustration. It is our understanding that, in the particular instance in question, the lawyer had a medical opinion that described the claimant’s disability using words that carry a precise meaning under the Social Security regulations. The inquirer asked the doctor who gave the opinion whether the doctor intended to use the words to mean the condition that the regulations defined. The doctor answered no and revised the report to clarify the opinion. Based on all the facts and circumstances, the lawyer had no reason to believe that the doctor’s intention in issuing the second opinion was anything other than to correct an error made in the first report. Accordingly, in our view, the lawyer was free to rely on the second opinion and offer only that opinion as evidence.
There are plainly circumstances, however, when the lawyer’s knowledge of two conflicting medical opinions would produce a different result. By way of example, if a lawyer has one medical report helpful to a client’s claim and then receives a subsequent unhelpful report from the same physician that is intended to rescind the first one, then the lawyer could not reasonably rely on the first report as a basis for proceeding with the claim. In that circumstance, the lawyer would not be free to offer only the first opinion as evidence, for to do so would be to present evidence that the lawyer knows to be untrue. Rather, the second opinion should alert the lawyer to question the basis of the client’s claim. This is but another way of saying that a lawyer may not use false evidence or assert a claim without due inquiry and a factual basis to believe that a good faith argument for a claim exists. DR 7-102(A)(2) & (5).
There are also circumstances when the lawyer either must produce both medical opinions or may produce neither opinion, even if the opinions are not contradictory. Truth cannot be measured in a vacuum. Accordingly, even if an opinion is technically correct, it would be improper for a lawyer to offer the opinion while withholding a second opinion that contains supplementary information about, or clarifies, the first opinion. DR 7-102(A)(5); DR 1-102(A)(4).
CONCLUSION
Subject to the qualifications set forth above, a lawyer representing a claimant in a Social Security disability hearing is not obliged to produce all relevant medical information if no request is made for such information and such information does not constitute knowledge that the claim is false.
July 28, 1993