Ethics

Lawyers can break attorney-client privilege to protect clients facing self-harm.

, The Legal Intelligencer

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Samuel Stretton
Samuel Stretton

Lawyers can break attorney-client privilege 
to protect clients facing self-harm.

I am concerned about my client. The client has not been doing well and recently has been talking about suicide in the context of a domestic case. Can I reveal that information to other family members or to medical people or other authorities to get the person help?

Under Rule of Professional Conduct 1.6(c)(1), it would appear that a lawyer could reveal that information even though that normally would be within the attorney-client privilege. Under Rule 1.6(c)(1), there is a discretionary exception that allows but does not require the lawyer to reveal information "to prevent reasonably certain death or substantial bodily harm."

The comments to the rule emphasize the importance of protecting attorney-client disclosures and confidentiality but note that there are "limited exceptions." Comment 7 notes that full disclosure by a client to an attorney is encouraged, rather than inhibited. The comment notes that the client could be inhibited if the lawyer would be in a position to reveal certain private facts. But Comment 10 notes as follows:

"Paragraph (c)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such a harm is reasonably certain to occur if it will be suffered imminently or there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat."

The comment speaks of injury to another, but the language in Rule 1.6(c) encompasses threatened suicide because the purpose of the rule was to prevent certain death or serious bodily injury.

Further, Rule 1.14 sets forth the obligation in representing a client with a diminished capacity. Threats of suicide may not fit in diminished capacity. Under Rule 1.14, a lawyer has to treat the client with respect and try to have a normal client relationship, even if there is diminished capacity. But there may be times when there are exceptions and a lawyer has to look after the client's interest and make disclosures to family members.

Comment 5 to Rule 1.14 notes that if a lawyer reasonably believes a client is at risk of substantial physical, financial or other harm unless action is taken, then a normal lawyer-client relationship cannot be maintained, and there can be some limited disclosure, including consulting with family members or other protective mental health services.

There are Pennsylvania Bar Association informal opinions discussing when confidential information about suicidal comments from a client can be revealed without violating the attorney-client privilege, including Informal Opinion 93-43.

This is always a difficult situation, and a lawyer always wants to err on the side of not disclosing in most cases. Every lawyer has to be aware that people in distress sometimes make idle threats or have moments of transient anger. The wise lawyer has to know when to distinguish real threats from cries for help and attention.

But if a client constantly references self-harm, and the circumstances are such that it appears the client's thoughts are serious, then the lawyer has a hard decision to make. The privilege should be protected, but lawyers must also look out for the welfare of clients. The attorney-client privilege should be protected, but the lawyer has the option, if the lawyer reasonably believes there is a true danger, to breach the privilege for that limited purpose to get help. Under those circumstances, a lawyer should exercise that option if the lawyer reasonably believes that the client's discussions are more than idle threats.

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