Katherine A. Helm
Stroock & Stroock's Joel Cohen
Say you're a personal-injury lawyer. A cliched poster boy for ambulance chasers, maybe, but you happen to be a decent and hard-working attorney. You do well for yourself by trying to do right for your clients while maybe even doing some good in the world. Surely these goals, of doing service to your clients and to the law, aren't wholly incompatible and we haven't lost readers whose eyes have rolled back in their heads yet? You just wait.
One thing good attorneys do is negotiate favorable settlements for their clients. A good settlement gives the client a certain result, by sidestepping the risk of trial and providing closure in a shorter time frame and with less cost than full blown litigation. Still with us? OK, so say you've done all that, or you think you have. You had an injured client who sought a speedy recovery. You employed a medical professional to assess the injuries, you sent the appropriate letters to defense counsel and the insurance adjuster with medical documentation supporting your claim, and you negotiated a good settlement package. You maximized the recovery for your client in an efficient manner, yes? In a straight-shooting legal world, perhaps. Perhaps also in a closed case with tight insurance policy limits and an insolvent defendant.
But for the sake of this little hypothetical, assume neither of the above is true. Assume, instead, that the other side also retained a medical expert who, at some point, told them that your client's injuries were more severe than was originally apparent. So much more severe, in fact, that in that doctor's opinion, without intervention, it is a reasonable certainty that the injured person will die, or else suffer substantial bodily harm. Now, setting aside the not unimportant reasons why you didn't learn of this yourself, may the other side's lawyers legitimately sit tight and allow that reasonably certain death to occur?
Simply to ask the question, as if the correct answer could possibly be yes, is disturbing indeed. Is it actually possible that in this day and age, this celebrated age of transparency, a lawyer would be ethically permitted to keep that knowledge to himself? Imagine this is an ethical lawyer, a venerable officer of the court, who for whatever reason is uniquely positioned to know with "reasonable certainty" that if he does not immediately tell a person to address an injury or condition that person doesn't know about, the injury will worsen to the point of death or at least substantial bodily harm. When physicians are employed by businesses or insurers to perform examinations, a limited physician-patient relationship is created that carries an ethical duty to inform the patient about important health information or abnormalities discovered during the exam. Why does a like duty not extent to lawyers to inform the other side and the court?
As a personal-injury attorney, could you think of any circumstance that would justify defense counsel taping his mouth shut (or allowing his client to apply the tape), when he could otherwise save your client's life by simply telling you or your client, the person at death's doorstep (or substantial bodily harm's doorstep), the serious injury or condition of which he is ignorant? If you have trouble coming to grips with counsel's non-obligation, try reversing sides to see how you fare when confronted with the ethical conundrum.
Now you're defense counsel. Assume some more facts. Say a minor is a car passenger in the shotgun seat. During a fender bender, his airbag malfunctions and forcefully whacks him in the head. The boy's family retains a personal-injury lawyer who, for whatever reason, quickly pushes for settlement from you, the joint representative of the automobile and airbag manufacturers. For this hypothetical, it doesn't matter if plaintiff's attorney is any good; just assume he simply failed to learn the full extent of injuries the boy has suffered.
By contrast, your firm follows its routine practice for head injury cases and does a full-court press. You retain a leading neurological expert whose "confidential/privileged" assessment tells you that the boy actually suffered an aneurysm from the impact, which is "capable" of leaking into the brain and causing possible brain damage or death. You quickly inform your clients who immediately recognize the need to settle the case before the worst happens.
You have moral reservations about keeping mum, knowing full well that you would desperately want the information if, God forbid, it was your kid. But your clients, two of the firm's biggest, demand in no uncertain terms that you keep your mouth shut. You consider the consequence of disclosure, letting the settlement fall apart, and exposing the manufacturers, your clients, to a megabucks judgment. So you opt to abide by your clients' interests. Without betraying your clients' need to settle to avoid the obvious -- because every day poses potential danger to the boy, not to mention the quick "out" settlement -- you agree to a higher settlement than the personal-injury attorney would expect and the deal gets sealed. Next case for all lawyers.
How does this sit with you? Stand in front of the mirror and ask yourself if that's OK. It's been drilled into every lawyer's head never to act against your client's interest. Fair enough. But how about the ethical obligation that everyone cites, where the lawyer is required to reveal a client's intention to kill someone. You have to stop that, right? How is this situation different? Well, here there is no intent to harm anyone, fine. There is also no absolute certainty of the outcome of death. But when does anyone ever have absolute certainty about anything in life? Step outside the ivory tower of conceptual ethics into reality. Acknowledge that ethics and morals are two altogether different things, as hard that might be for the layman, and even some lawyers, to accept.
It is possible that the settlement might not stand. In Spaulding v. Zimmerman, 263 Minn. 346 (1962), the case upon which our hypothetical was based, the court had vacated the settlement due to defense counsel's concealment of knowledge that the minor was suffering an aorta aneurysm which may have arisen from the car accident. The act of court discretion, not based on fraud or bad faith, was upheld even though defense counsel had no legal obligation to disclose the true situation to court or to plaintiff "which they could assume had been disclosed to him by his own physicians." Id. at 348. If the physician fails to inform, or informs only the examinee's attorney, the legal machinations continue with no onus on lawyers to reveal a damn thing.
This remains the law in most states. Even though Spaulding created a wedge for a court to inject itself into settlements and reopen judgments, possibly by invoking Model Rule 3.3's duty of candor before the tribunal, the court was nonetheless crystal clear in stating "[t]here is no doubt that during the course of the negotiations, when the parties were in an adversary relationship, no rule required or duty rested upon defendants or their representatives to disclose this knowledge." 263 Minn. at 352. Until recently in the Model Rules, even if the facts were worse, i.e., the aneurysm would "definitely and imminently" leak into the brain causing certain death (or "only" severe brain damage on the lighter side), without client consent a lawyer could positively not make the type of disclosure contemplated here. A lawyer was actually ethically prohibited from performing a moral act that any layman would perform for street lowlife.
But now, some state legal bars (New York among them) and its ethicists congratulate themselves that, finally, the lawyer may, but still need not, although risking the book of business, make the disclosure to the injured soul in the face of a client's countermanding order. See Model Rule 1.6 ("A lawyer may reveal information relating to the representation of a client ... to prevent reasonably certain death or substantial bodily harm."). Notably, the most recent -- and, yes, highly controversial -- change substituted "imminent" death for "reasonably certain" death. Enough with the backslapping! We're proud as a profession that we "may" make a potentially life-saving disclosure, even though we'd be ethical lawyers if we decide to keep it to ourselves? Far too few states go the distance and actually require disclosure.
It is one thing for an attorney not to have an affirmative obligation to take action to prevent his client from committing a subsequent bad act, i.e., a fraud, even if he learned the client's intention from a confidential conversation. But we're not talking fraud here, we're talking death. If the answer to the death/bodily harm question is that the lawyer may indeed, ethically, keep his mouth shut on the subject, is the legal profession rendering subordinate the primacy of human life to the "higher calling" of client confidentiality? Lawyers who really care about client/patient health might do better to push for ethics amendments over health-care caps on medical malpractice awards, no?
We do not intend to be churlish with our questions. We mean to raise awareness. No matter what side of the bar you are on, plaintiff or defense or a little of both, this is your moral laxity in place and embodied in the ethics rules. Nobody would question that it would be immoral -- there's simply no other word for it -- for someone to be aware that a human being is suffering from reasonably certain death and do nothing about it. Morality, under any view of it, would compel action. So too would medical ethics. Why not legal ethics? We are at a loss for a good answer.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He is a former New York state and federal prosecutor and is an Adjunct Professor of Professional Responsibility at Fordham Law School. He is a frequent commentator and lecturer on criminal law and legal ethics. He can be reached at jcohen@stroock.com. Katherine A. Helm, Ph.D., is a law clerk for a U.S. Court of Appeals judge in Washington, D.C. She previously clerked in a U.S. District Court and worked at a large New York City law firm. She has published numerous articles and commentary on legal issues. She can be reached at kassie.helm@gmail.com. This column is the latest in a monthly series by Cohen and Helm for Law.com.
