State Bar of Arizona Ethics Opinions
91-18: Confidentiality; Disabled Clients
Committee discusses when an attorney may disclose his client's threat to commit suicide after the conclusion of one lawsuit.
The inquiring attorney represents a client who has sustained severe, disabling physical injuries. The client has informed the inquiring attorney that he intends to commit suicide after the personal injury action is concluded. In addition, the client has stated that his doctor, the defendant in the action, will "go down with him." The inquiring attorney states that he believes the client to be serious about the suicide but does not believe that the client is serious about "bringing [the doctor] down with him."
1. Must the inquiring attorney, with ethical propriety, reveal his client’s intention to commit suicide? May he ethically do so?
2. Must the inquiring attorney, with ethical propriety, reveal his client’s intention to "bring [the doctor] down with him?" May he ethically do so?
ETHICAL RULES INVOLVED
ER 1.6. Confidentiality of Information
(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, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.
ER 1.14. Client Under a Disability
(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.
The Rule of Professional Conduct concerning confidentiality of information, ER 1.6, provides that all information "relating to representation of a client" must be kept confidential. ER 1.6(a). The information protected by ER 1.6(a) includes all information learned about a client or his case during the course of representation. See ABA/BNA Lawyers’ Manual on Professional Conduct at p. 55:101. This committee previously has found the confidentiality requirement of ER 1.6 to be very broad. See our Opinion No. 90-13 (October 16, 1990) at pp. 13-14. Therefore, the statements made by the inquiring attorney’s client, that he intends to commit suicide and that he intends to "bring[ ] [the doctor] down with him," relate to representation for the purposes of ER 1.6(a). See Opinion of the Committee on Professional Ethics of the New York State Bar Association No. 486 (June 19, 1978) reprinted in 50 New York State Bar Journal 441-444 (Aug. 1978). Indeed, they apparently stem from the clients physical and emotional condition resulting from the circumstances that form the basis of the personal injury action, and were communicated to the inquiring attorney in his role as legal counsel.
Such communication must be kept confidential unless one or more of the exceptions to the confidentiality rule which are set forth in ER 1.6(b), (c), (d) or ER 3.3(a)(2) is applicable. The only two stated exceptions potentially applicable to the inquiring attorney’s predicament are ER 1.6(b), which requires disclosure to prevent a client’s criminal act threatening death or substantial bodily harm, and ER 1.6 (c), which permits disclosure of a client’s intention to commit a crime.
A. Client’s intent to commit suicide.
As to the client’s announced intention to commit suicide, the threshold issue is whether suicide is a criminal act under Arizona law. Questions of law, however, are beyond the Committee’s jurisdiction. Committee on Rules of Professional Conduct, Statement of Jurisdictional Policies, para. 6(a).1 If the inquiring attorney determines that suicide is a crime, then he is required to disclose the client’s intention to commit suicide to the extent the lawyer reasonably believes necessary to prevent that crime, ER 1.6(b), since suicide clearly is an act involving "death or substantial bodily harm". Should it be deemed necessary, the disclosure required would depend on the circumstances. The purpose, of course, would be to prevent the act, and how best to do so is a matter for the attorney’s judgment and discretion. Involving the client’s spouse or other family member or a professional counsellor may be most appropriate in some cases. We note only that the disclosure should be "no greater than the lawyer reasonably believes necessary to the purpose." ER 1.6, Comment.
A more interesting question arises concerning the inquiring attorney’s obligations if suicide is not a crime under Arizona law. In that case, a strict literal reading of the confidentiality rule and its exceptions would lead us to conclude that the attorney could not, under any circumstances, reveal his client’s intention to commit suicide. See ABA Informal Opinion 83-1500 (June 24, 1983) (ABA/BNA Lawyers, Manual on Professional Conduct, pp. 801:349-350).
Suicide, however, was a felony under early common law, see 4 Encyclopedia of Crime and Justice 1526 (S. Kadish, ed. 1983),2 and any modern discriminalization of the act, if in fact that is the case in Arizona, in no way lessens the traditional, deep social and legal concern for the preservation of human life and the prevention of suicide in most cases. See generally “The Prohibition of Suicide” in G. Williams, The Sanctity of Life and the Criminal Law 248-310 (1966). Ethics committees in other jurisdictions, therefore, interpreting either ER 1.6 or its predecessor under the Model Code, DR 4-101, have permitted attorneys, in their discretion, to disclose information to the extent reasonably necessary to prevent a client from committing suicide. Primary among these opinions is ABA Informal Opinion 83-1500, supra, which held that, under the Model Code (and probably under the then-proposed Model Rules as well), an attorney might disclose his client’s intention to commit suicide, even where suicide is not a crime, as a last resort to prevent the act. The ABA Ethics Committee strictly limited its opinion to the circumstances of intended suicide and relied on two prior ethics opinions, discussed below, in reaching its decision.
In Opinion No. 486 of the Committee on Professional Ethics of the New York State Bar Association, supra, the New York Ethics Committee’s opening comment is worth repeating:
"The issue is a difficult one. The lawyer’s obligations will depend in part upon the circumstances of each case, and upon the experience, wisdom and skill at human relations of the lawyer to whom the disclosure is made. There is also a need to balance the law’s longstanding policies concerning the protection of human life against customary professional standards involving the preservation of client confidences and secrets."
Id. at 442.
Analogizing the situation to circumstances where a person of sound mind elects to refuse lifesaving medical treatment, the New York Committee acknowledged that, in some cases, a lawyer may properly elect to remain silent. Id. at 443. On the other hand, the Committee recognized that stating one’s intention to commit suicide often may be a cry for attention or help. Id at 442 n.1, 443. The Committee then concluded that, under the Code: "The lawyer may thus, and generally should, take appropriate action to keep the client from committing suicide and, for this purpose, may reveal the client's suicidal intent to others." Id. at 444.
Similarly, in its Opinion No. 79-6 (1979) of the Ethics Committee of the Massachusetts Bar Association reprinted in 64 Mass. L. Rev. 186 (Oct. 1979), the Committee determined that, even where suicide is not a crime, it is nevertheless malum in se in other respects. Therefore, an attorney is "clearly free to intervene when the attorney reasonably believes an individual [client] is contemplating imminent suicide." Id.3
We believe there is much to be said for the New York and Massachusetts approaches; a threat to human life is special. In People v. Fentress, 425 N.Y.S.2d 485, 103 Misc. 2d 179 (Co. Ct. 1980), an attorney received a telephone call in the middle of the night from a distraught friend who said that he had just killed someone and was about to kill himself. The legal issue was whether the client, in essentially acquiescing in the attorney’s advice that the police be called, waived confidentiality of the corpus. In the last part of its opinion concerning the propriety of the attorney’s actions in indirectly summoning the police, the court noted that the announced suicidal intentions "pervade the case." Id. at 496. Even if the client had strictly forbidden the attorney from calling the police, "the ethical duty of silence would be of dubious operability." Id. at 497.4 For:
The ethical oath of secrecy must be measured by common sense. . . To exalt the oath of silence, in the face of imminent death, would, under these circumstances, be not only morally reprehensible, but ethically unsound. .·. If the ethical duty exists primarily to protect the client’s interests, what interest can there be superior to the client’s life itself?. . . Had [the attorney] acted any differently, he would have blindly and unpardonably converted a valued ethical duty into a caricature, a mockery of justice and life itself. Id.
In their leading treatise, Professors Hazard and Hodes opine that the narrow scope of permissible disclosures under ER 1. 6 goes too far in minimizing the exceptions to confidentiality. "Many lawyers will chafe under a rule that threatens to punish them if they do what they know is morally right. The public . . . will condemn the profession for imperiously decreeing that its ethics supersede prevailing notions of morality." 1 G. Hazard & W. Hodes, The Law of Lawyering 167 (2d ed. 1990). Even Professor Monroe Freedman, perhaps the best-known and staunchest defender of a near absolute principle of client confidentiality, would require lawyers to reveal confidences to the minimum extent necessary to save a human life. See e.g., M. Freedman, Understanding Lawyers’ Ethics 103 (1990).5
On the other hand, we cannot say that for all individuals under all circumstances suicide is a fundamentally wrong and improper act that must be prevented at all costs. Moreover, some may argue that, at some level, a client may have a "right" to take his or her own life, or at least such a "right" as to preclude an attorney in whom the client confides from interfering and frustrating the client’s intent by breach of the confidence. See Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986) (upholding mentally competent but non-terminal patient’s right to refuse involuntary forced feeding keeping her alive); Rivera, Lawyers, Clients, and AIDS: Some Notes from the Trenches, 49 Ohio St. L.J. 883, 899-890 (1989) (discussing how lawyers who represent persons with AIDS who may be considering suicide can counsel and advise their clients).
In addition, it might be hard to determine principled parameters of a general rule allowing disclosure of client confidences whenever necessary to save a human life, a dilemma that may be increasingly common. See Rivera, supra; McBride, Deadly Confidentiality: AIDS and Rule 1.6(b), 4 Geo. J. Legal Ethics 435-458 (1990) (arguing for a malum in se exception to Rule 1.6 allowing a lawyer to disclose clients infection with AIDS to client’s cohabitant, even if knowing transmission of the AIDS virus is not a criminal act).6 And we have no desire to revisit in this opinion the substantial debate on this point that attended the adoption of Rule 1.6 of the ABA Model Rules. See G. Hazard & W. Hodes, supra at 164-168; M. Freedman, supra at 102-105.
Rather, we believe there is an alternative course for the inquiring attorney, one suggested in ABA Informal Opinion 83-1500 discussed above. That Opinion cites EC 7-12 of the Model Code regarding a client with a disability -- that is, "[a]ny mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf." EC 7-12. As the ABA Opinion recognized, this concept is reflected in ER 1.14, paragraph (b) of which allows a lawyer to take appropriate "protective action" when "the lawyer reasonably believes that the client cannot adequately act in the client’s own interest." ER 1.14(b).
The Rules do not specify what constitutes a disability. We believe, however, that a lawyer whose client announces his intention to commit suicide way conclude that there is sufficient question whether, in this regard, the client is capable of acting in his own best interest so as to invoke ER 1.14(b). If so, in such an "unavoidably difficult" situation, the Comment allows limited disclosure of the client’s condition. ER 1.14, Comment. That is, "[t]he lawyer may seek guidance from an appropriate diagnostician." Id. This approach is in accord with both ABA Informal Opinion 89-1530 (Oct. 20, 1989) (ABA/BNA Lawyers' Manual, supra, pp. 901:329-332) ("disclosures necessary for the lawyer to seek expert advice when there is reason to suspect impairment threatening serious harm to the client are impliedly authorized in order to carry out the representation within the meaning of Model Rule 1.6" Id. at p. 901:331), and our own recent opinion No. 90-12 (October 15, 1990) (when an attorney believes his client is under a mental disability, he may disclose confidential information to an appropriate doctor or diagnostician to the extent necessary for that person to render an opinion as to the client’s disability).
Thus, we conclude that the confidentiality rule does not prevent the inquiring attorney from taking the steps necessary to inform a psychologist, counselor, or other appropriate person of his client’s intention to commit suicide so that the client may receive the assistance necessary to deal with this problem. This limited disclosure preserves the client’s confidence and autonomy to the greatest extent while also allowing the attorney to respond humanely to what well may be his client’s cry for help. Finally, it has the added virtue of involving someone who, by training and experience, may be far better suited to dealing with the client on this issue than the lawyer.
B. Client’s possible threat against his doctor.
But for the ambiguity and uncertainty in the client’s statement that his doctor will "go down with him", the inquiring attorney% s obligations here are relatively straightforward. If the lawyer perceives this as a threat against the doctor that will lead to the client committing a criminal act "likely to result in death or substantial bodily harm", the lawyer is required under ER 1.6(b) to reveal such information "to the extent the lawyer reasonably believes necessary to prevent" such act. Of course, it is very difficult for a lawyer ever to know that a client actually will carry out an expressed threat. See ER 1.6, Comment. In some cases, a client's physical capability and opportunity to act on his threat may be highly relevant. Moreover, as was discussed earlier, the nature and extent of such disclosure is a matter for the attorney’s judgment and discretion. Informing the police, for example, would not necessarily be appropriate if other measures under the circumstances would suffice, especially considering the likely harm to the attorney-client relationship this would entail. Again, the goal is to prevent the client*s criminal act with disclosure "no greater than the lawyer reasonably believes necessary to the purpose". ER 1.6, Comment. A reasonable decision and action by an attorney in such a difficult situation should not be the subject of disciplinary action.
In this case, however, the inquiring attorney states that he does not believe the client is serious about "bringing [the doctor] down with him." We take this to mean that the lawyer does not perceive this statement to be a real threat of physical action against the doctor as opposed, perhaps, to an emotional expression of resentment against the doctor and a prediction of the effect of the lawsuit on the doctor. In this case, ER 1.6(b) does not require disclosure of any information by the attorney since the attorney does not reasonably believe the client intends to commit a criminal act and so there is no need for intervention. For the same reason, ER 1.6(c) does not permit the attorney to reveal the information. Disclosure would serve no useful purpose but likely would harm the attorney’s relationship with his client. Thus, with no applicable exception, the attorney must maintain the confidentiality of his client’s statements.
C. Note regarding possible legal liability.
We must close, however, with an important caveat with respect to both portions of our opinion. In keeping with our limited jurisdiction, we discuss only the ethical aspects of the inquiring lawyer’s situation. We do not discuss legal issues of the attorney’s possible liability for failing to warn or take other appropriate action to prevent his client from harming himself or another. In the well-known Tarasoff case, for example, the Supreme Court of California found that a psychotherapist owes a duty to warn or otherwise protect others from patients who the doctor knew or should have known were dangerous. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976). As to the issue of confidentiality of patient-psychotherapist communications under the applicable medical professional ethics (admittedly different from ER 1.6), the court said: "We conclude that the public policy favoring protection of the confidential character of patientpsychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins." 551 P.2d at 347.
A lawyer similarly may owe a duty not only to his client but to third parties as well. See, e.g., Fickett v. Superior Court, 27 Ariz. App. 793, 795, 558 P.2d 988, 990 (1976) (whether, in a specific case, an attorney will be held liable to a third person not in privity is a matter of policy involving the balancing of various factors). Compliance with the Rules of Professional Conduct does not necessarily imply insulation from other legal duties or liabilities. In Hawkins v. King County, 24 Wash. App. 338, 602 P.2d 361 (1979), an attorney was sued for not disclosing at his client's bail hearing that another attorney and a psychiatrist had told him his client was mentally ill and dangerous. After the attorney obtained the client’s release on personal recognizance, the client assaulted his mother and attempted suicide, suffering grave injury. Citing Tarasoff and other cases, the court noted common law support for the principle that, upon learning that a client plans an assault or other violent crime, an attorney must warn foreseeable victims. While suggesting that imposing such a duty might be appropriate in some cases, the court painstakingly distinguished its present case from Tarasoff on the facts. See also Merton, Confidentiality and the "Dangerous" Patient: Implications of Tarasoff for Psychiatrists and Lawyers, 31 Emory L.J. 263, 336-338 (1982) (questioning whether there would be lawyer liability for the suicidal client in a case like Fentress, supra).
While we feel constrained to raise this issue for consideration by attorneys, as in Massachusetts Opinion No. 79-6, supra we make no effort to decide any of these legal issues.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1991
1 We note, however, that a computerized search has shown that "suicide" is mentioned only twice in the Arizona criminal code, A.R.S. § 13-403 (4) and § 13-1103 (A) (3), neither of which citations appears to make the act of suicide itself a crime.
2 The punishment for suicide at English common law was burial in the public highway with a stake driven through the body and forfeiture of all one’s goods to the Crown. Id.
3 For another state ethics opinion in agreement with ABA Informal Opinion 83-1500, see State Bar of Georgia Ethics Opinion No. 42 (Nov. 16, 1984) (ABA/BNA Lawyers' Manual, supra, p. 801:2704) (a lawyer who reasonably believes that his client is contemplating suicide may disclose this information when the attorney’s attempts to counsel the client against it apparently have failed). Other ethics committees have permitted disclosure in jurisdictions where suicide apparently is still a criminal offense. See Alabama State Bar Ethics Opinion 83-12 (Feb. 4, 1983) (ABA/BNA Lawyers’ Manual, supra, p. 801:1046); Virginia State Bar Ethics Opinion 560 (April 10, 1984) (ABA/BNA Lawyers’ Manual, supra, p. 801:8823). Only one state’s ethics committee seems to prohibit an attorney from disclosing his client’s intent to commit suicide, where suicide is not a crime. Advisory Opinions Committee of the State Bar of New Mexico, Opinion 1987-1 (undated) (ABA/BNA Lawyers' Manual, supra, p. 901:6005).
4 The court did not have to decide the legal consequences of such an interdiction by the attorney since it found the client had acquiesced in the call to the police. Id.
5 Both authorities are critical of the defense counsel in Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962), a personal injury action in which defendant’s medical expert examined plaintiff and found a life-threatening aortic aneurism which probably was caused by the accident. Plaintiff and his attorneys were ignorant of the condition, and defense counsel merely settled the case without revealing the imminent danger of death. See G. Hazard & W. Hodes, supra at 170-173; M. Freedman, supra at 103-104. (The court in Spaulding said that the defense lawyers were not obliged to disclose to plaintiff his medical condition, and apparently reopened the settlement only because plaintiff was a minor. 116 N.W.2d at 710).
6 The classic "hypothetical" of disclosing a client’s confidential admission of guilt in order to save another wrongly convicted and sentenced to death apparently arose in the infamous Leo Frank case in Georgia during the second decade of this century. See Introduction by A. Dershowitz to L. Dinnerstein, The Leo Frank Case (Notable Trials Library ed. 1991); A. Henson, Confessions of a Criminal Lawyer 59-76 (1959).