Most criminal defense attorneys, along with attorneys in other areas of practice, have encountered the situation where a client says something to the effect of, “I would rather die” than face some other outcome. Such a statement may trigger certain obligations by counsel under California’s legal ethics rules, which vary from much of the rest of the country.
First, we are going to assume such a statement is made in the course of your legal representation of a client. If you learn of such a threat outside of the confidential attorney-client relationship, the fact you are a lawyer doesn’t require you to remain silent. If, however, the threat is conveyed to you as part of your representation of a client, you are governed by Business and Professions Code 6068(e) and California Rule of Professional Conduct 3-100, which mirror each other.
Business and Professions Code 6068(e) states:
An attorney has a duty:
(1) “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client;”
(2) “Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” (Emphasis added).
As you can see, your reaction to a client’s threatened suicide may be governed under section 2. You may be relieved of your duty of confidentiality if: you had a reasonable belief; you would be acting to prevent a criminal act; that would likely result in death or substantial bodily harm. Under the facts presented, you might meet all these elements, except in California.
As in many other states, attempted suicide is not a crime in California. Unlike every other jurisdiction in the United States, which all follow a version of the ABA’s Model Rules, the California rule’s dual requirement of (1) a criminal act that will (2) likely result in death or substantial bodily harm thwarts the confidentiality exception of other jurisdictions.
The exceptions to confidentiality under the ABA Model Rule 1.6(b) are broader than in California. Rule 1.6 states:
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary
(1) to prevent reasonably certain death or substantial bodily harm;
Additionally, ABA Model Rule 1.14 concerning Client with Diminished Capacity states in subsection b:
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
The ABA has concluded an attorney may disclose a client’s declared intent to commit suicide to a third person. See ABA Comm. on Prof’l Ethics and Responsibility, Informal Opinion Op. 89-1530 (1989) (citing ABA Comm. on Prof’l Ethics and Responsibility, Informal Opinion Op. 83-1500 (1983)).
Other jurisdictions have agreed with the ABA. See, https://www.llrx.com/2014/10/clients-and-suicide-the-lawyers-dilemma/ for a collection of opinions from around the country.
Although not binding in California, the ethics opinions, rules and standards promulgated by other jurisdictions and bar associations may be considered for guidance on proper professional conduct. (CRPC 1-100(A) (State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656.) Guidance, yes, but not that useful in this circumstance.
So, as a California practitioner confronted with this dilemma and wanting to protect your license, what should you do? There are ways to alert those in a position to help without revealing confidences.
As a preliminary matter, you have to first ascertain if a reasonable person would consider the threat real. Second, you may counsel the client on getting help themselves. I have, on at least one occasion, convinced a client to get necessary mental health treatment and helped facilitate the actual delivery of that treatment.
Another technique you may use is to get the family and other loved ones involved by facilitating communications between them. Again, in at least one instance, this has worked for me. Without me revealing any client confidences, the threat was repeated to the family, which could then take action.
Of course, there are many scenarios in which none of these suggestions may work. But you, as a California attorney, cannot lose sight of your ethical obligations when deciding what to do.
Michael Crowley is (mlcrowley@crowleylawgroup.com) founder and lead attorney with Crowley Law Group, APC
**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**