Friday, December 4, 2015
The Virginia State Bar is addressing a difficult issue that attorneys sometimes face
May a lawyer disclose otherwise confidential information to protect a client who threatens to commit suicide?
Rule of Professional Conduct 1.14 ("Client With Impairment") http://www.vsb.org/pro-guidelines/index.php/rules/client-lawyer-relationship/rule1-14/ provides guidance to a lawyer whose client's physical and financial well-being is at risk of substantial harm due to the client's diminished capacity. Sadly, there have been many instances when a client facing incarceration, loss of child custody, or loss of income and property has informed his or her lawyer that the client intends to commit suicide. When the lawyer "reasonably believes" that such a threat is credible, the lawyer "may take reasonably necessary protective action" on behalf of the client. Neither the Rule nor the Comments which follow it specifically address a client's threat of suicide, but the Rule should be interpreted to allow the lawyer to contact the client's family, close friends, mental health care providers, or emergency medical services personnel so that an intervention can be made to save the client from harm. Lawyers who take protective action consistent with Rule 1.14 do not violate Rule of Professional Conduct 1.6 ("Confidentiality of Information") http://www.vsb.org/pro-guidelines/index.php/rules/client-lawyer-relationship/rule1-6/ because Rule 1.6(a) permits disclosures which are "impliedly authorized in order to carry out the representation". Lawyers must nonetheless adhere to the requirement of Rule 1.14(c) to reveal otherwise confidential information "only to the extent reasonably necessary to protect the client's interests."
The Standing Committee on Legal Ethics has opined that it is not a violation of the ethical duty of confidentiality for a lawyer to disclose to appropriate authorities a client's stated intention to commit suicide. See LEO 560 http://www.vsb.org/docs/LEO/560.pdf