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.
These decisions are always difficult, but a lawyer must do the appropriate analysis to protect the client.
Communicating with unrepresented defendants requires a clear explanation of an attorney’s role.
How far can a lawyer go in communicating with an unrepresented defendant in a civil action when the lawyer represents the plaintiff?
Dealing with an unrepresented party is always a challenge. The Rules of Professional Conduct have a specific rule involving dealing with unrepresented people, found at Rule 4.3. Under Subsection (a) of that rule, a lawyer, in discussing a matter with someone who is not represented, cannot “state or imply that the lawyer is disinterested.”
Further, the lawyer is not allowed to give advice to a person who is not represented, other than advice to secure counsel if the lawyer knows or reasonably should know the interests of the unrepresented person are in conflict with the interests of the lawyer’s client. Obviously, if one is suing someone who is unrepresented, their interests would be in conflict. When the lawyer knows or reasonably knows that the unrepresented person misunderstands the lawyer’s role, then the lawyer has to make reasonable efforts to ensure the person understands the lawyer’s role and correct any misunderstandings.
Rule 4.3 often applies when the lawyer is representing a client in a domestic dispute with a girlfriend or wife. The lawyer cannot provide advice to the unrepresented wife, who is obviously in conflict with the lawyer’s client. One of the worst things a lawyer can do is tell the unrepresented wife or girlfriend to plead the Fifth Amendment. That would violate the rule and at the same time could put the lawyer in a position of obstructing justice if the person then refuses to testify.
A difficult situation arises if the person is going to remain unrepresented when there is a pending civil action. The lawyer has to be able to communicate with the unrepresented party. The lawyer has to be able to discuss dates, times, depositions, settlement discussions and the merits or lack of merits of the case with the other person. Rule 4.3 is a good rule, but there would appear to be exceptions to allow a lawyer to continue to discuss the case if the person is advised to get a lawyer and refuses and continues to represent himself or herself. Otherwise, the case could not proceed properly.
Comment 2 to Rule 4.3 notes as follows:
“This rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s underlying view of the underlying legal obligations.”
Therefore, there is an exception for ongoing civil litigation where one side is pro se. The deception is not to be abused and obviously Rule 4.4, titled “Respect the Rights of the Third Person,” clearly requires a lawyer to act appropriately and not embarrass, delay or burden the third person or, in other words, take advantage of a third person.
But Rule 4.3 does allow communication and discussions if a person desires to remain unrepresented.
The key seems to be that the lawyer must initially urge the unrepresented person to get counsel. A wise lawyer will send letters. The wise lawyer will also, in the letters, clearly define the lawyer’s role and whom the lawyer represents and make the unrepresented person know the lawyer’s client’s interest is very different from the unrepresented person’s interest.
But if the person continues without counsel and the case moves forward, then the lawyer has the right to try to negotiate and discuss settlements and perhaps give his or her viewpoint on the law and the merits. Otherwise, the case could not proceed.
As the comment notes, the lawyer has to look at the sophistication of the person he or she is dealing with. The rule makes it clear that the lawyer is not precluded from negotiating or settling a dispute.
Therefore, in ongoing litigation or representation of a client when the other side is not represented, once the lawyer has clarified his or her role with the unrepresented side and strongly and repeatedly urged that person to get legal counsel, the lawyer can then negotiate, discuss and draft agreements and resolve issues. Obviously, the lawyer can’t take advantage of that person as noted above under Rule 4.4.
But Rule 4.3 would not be violated under those circumstances as long as the lawyer has clarified his or her role. To allow otherwise would create chaos and give an unrepresented person an advantage and burden the court system with claims that could be resolved.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.