(This article appeared in Journal 24,1, March 2019)
One of the most difficult situations a lawyer can face is a client who is threatening suicide. I have received calls from frantic lawyers concerned about their client’s wellbeing, but also concerned about their responsibilities under the Rules of Professional Conduct. Some lawyers believe they have an affirmative duty under the rules to try to prevent the suicide, while others believe the rules prohibit them from taking any preventative action. Neither of these assumptions is correct.
Lawyers often feel unqualified to appropriately handle the situation and understandably want to seek professional assistance in dealing with the client in crisis. Lawyers seeking ethics guidance are often concerned that revealing the client’s suicidal intent to others will violate the duty of confidentiality under Rule 1.6. Without a doubt, the protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) prohibits a lawyer from revealing information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized, or the disclosure is permitted by Rule 1.6(b). Ideally, the lawyer will consult with the client and obtain consent to disclose the client’s intent to a third party. If the lawyer is unable to obtain the client’s consent, the question becomes whether the Rules of Professional Conduct mandate or permit disclosure without the client’s consent.
There are two provisions in the Rules of Professional Conduct that may permit a lawyer to disclose a client’s threats of suicide to third parties. Rule 1.6(b)(3) provides that a lawyer may reveal information otherwise protected from disclosure to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or bodily harm. Rule 1.14(b) allows disclosure of confidential information when the lawyer reasonably believes that a client’s suicide threat is credible. (Disclosures made pursuant to Rule 1.14 are considered “impliedly authorized” under Rule 1.6(a)). While these two rules allow the lawyer to make a disclosure to prevent the client from harming himself, they do not require it. The remainder of this article discusses what a lawyer may do in this scenario, not what he or she must do.
Both Rule 1.6(b)(3) and Rule 1.14(b) allude to a lawyer’s “reasonable belief” that the client intends to harm himself. Lawyers often struggle with assessing the credibility of the client’s threat. The Restatement (Third) of the Law Governing Lawyers § 66 (2000) has recognized various factors to consider in deciding whether the disclosure of confidential information is necessary to prevent reasonably certain death or substantial bodily harm, including the following:
1. The degree to which it appears likely that the threatened death or serious bodily harm will actually result in the absence of disclosure;
2. The irreversibility of the consequences once the act has taken place;
3. The lawyer’s prior course of dealing with the client; and
4. The extent of adverse effect on the client that might result from disclosure contemplated by the lawyer.
Cathy Killian, one of the clinical directors for the North Carolina State Bar’s Lawyer Assistance Program, offers the following questions as a way of assessing the situation: Is there suicidal ideation only, or actual intent? If there is intent, is there an immediate risk? If there is an immediate risk, do they have a plan? If they have a plan, do they have the means to carry out this plan and is this plan truely lethal or just self-injurious?
A lawyer may consult a mental health professional to help evaluate the credibility of a threat of suicide. However, the disclosure to the mental health professional should be no greater than necessary to obtain an opinion. Rule 1.14, cmt. [6]. The lawyer may want to contact his own physician, a knowledgeable acquaintance, or a crisis hotline. The National Suicide Prevention Lifeline is a free resource not only for people who are in crisis themselves, but also for those who are concerned about someone else. A list of suicide warning signs and risk factors is posted on the Lifeline’s website (suicidepreventionlifeline.org/how-we-can-all-prevent-suicide). A lawyer may also contact the Lifeline directly for assistance at 800-273-8255.
If the lawyer determines that the client’s threat is credible, the lawyer may take “reasonably necessary” preventative measures. What particular measures are reasonably necessary depends upon the circumstances and the facts known to the lawyer.
Reasonably preventative measures may include counseling the client against suicide and encouraging the client to get help. In some scenarios, the lawyer may determine that reasonably necessary preventative measures include disclosing confidential client information to an individual or entity that has the ability to protect the client. Comment [5] to Rule 1.14 suggests contacting family members, support groups, professional services, or adult-protective agencies. As with the consultation to evaluate the credibility of the client’s threat, the disclosure of information to the individual or entity should be no more extensive than is reasonably necessary to prevent the harm to the client. In addition, “reasonably necessary” measures should be the least restrictive actions under the circumstances.
Ms. Killian recommends that lawyers be proactive in preparing to deal with clients in crisis, in addition to the basic familiarization with the Rules of Professional Conduct. One suggestion is for lawyers to have the contact information for the mobile crisis unit in their area or other appropriate community resources readily available. She also suggests that lawyers make contact with a few counselors in the community to which they can refer clients, and/or that can provide the lawyer with guidance on dealing with suicidal clients. Another suggestion is that if the lawyer is aware that a client is seeing a mental health professional, the lawyer ask the client to sign a release at the beginning of the representation allowing the lawyer to contact the professional if needed. Finally, the lawyer should know that expressing empathy and genuineness, and adopting a collaborative stance with the client, will help engender confidence to the client that there is a more positive alternative to suicide.1
The Rules of Professional Conduct offer, among other things, terms with which lawyers can resolve difficult situations that arise with clients. A client’s expressed suicidal thought or intention is one of the most difficult scenarios we will face as lawyers. If you ever find yourself in that situation, know that it is not professional misconduct for a lawyer, acting reasonably and in good faith, to exercise her professional judgment to disclose or not to disclose in this most delicate and critical of situations. Evaluate the credibility of the threat to the best of your ability—and with any assistance that may be available—and then use your best judgment to determine whether it is reasonably necessary to reveal the client’s suicidal intent to others. Err on the side of safety. If you are still not sure, contact a State Bar ethics lawyer and seek advice.
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.
Endnote
1. Lawyer’s Mutual also has helpful information on this issue on its website, including the article “Having a Plan in Place Could Save a Life,” by Monisha Parker, located at lawyersmutualnc.com/blog/having-a-plan-in-place-could-save-a-life.