Is it an attorney’s responsibility to disclose client’s threats of suicide?

Is it an attorney’s responsibility to disclose client’s threats of suicide?

If a client tells their lawyer they are depressed and plan to commit suicide many ethical issues are raised. This is confidential information given to lawyer from the client; however, what is the appropriate action to take if the lawyer believes that the client will likely try to follow through on the suicidal thoughts? In this situation, should the lawyer disclose this information to family members, mental health professionals or others who can prevent the client from harming themselves?

The below examines the issue from a  U.S. perspective,  domestically under the CBA, and finally within Ontario’s LSUC. It also examines a notation of  an SCC decision relating to this issue in the framework and context of Quebec obligations.  

[1]      In the U.S. –

 See Alaska Op. 2005-1:

ALASKA BAR ASSOCIATION

ETHICS OPINION NO. 2005-1

Responsibilities of the Attorney Representing a Client Who, After Being Charged with a Felony Offense, Informs the Attorney of the Client’s Intent to Commit Suicide if Convicted

Question Presented

An attorney represents a client charged with felony sexual assault, but realizes that the client has no credible defense. The client, however, is not interested in a plea bargain and is adamant about taking the case to trial. The client has further informed the attorney that if convicted of the felony sexual assault, the client will commit suicide rather than go to jail.

Must the attorney disclose the client’s stated intention to commit suicide rather than go to jail if convicted?

The Committee concludes that under ARCP 1.14, the attorney may disclose the client’s stated intent to commit suicide to the proper authorities (e.g., the court, appropriate mental health professionals, or appropriate detention facility personnel) irrespective of the client’s custodial status, but is not required to do so.(1) 

The Alaska Bar Association joins the American Bar Association and the several other state bar associations that have addressed this issue. These associations have determined that disclosure of a client’s suicidal intent is permissible.(2)

Analysis

Generally, an attorney may not reveal a confidence or secret concerning the representation of a client without the client’s explicit or implicit consent. ARPC 1.6(a).(3) Of course, there are exceptions where the client engages in criminal or fraudulent conduct, or raises a claim against the attorney.(4) Those exceptions, however, do not apply to the facts here because suicide is not a crime in Alaska. Because no crime or fraud is involved, it may appear that Rule 1.6 prohibits the disclosure of the client’s suicidal intent.(5)

In our opinion, Rule 1.14(b) permits disclosure of such information and in this particular circumstance, overrides the prohibitions set forth in Rule. 1.6. Cf. 74 Conn. B.J. at 240.

Rule 1.14(b) comes into play “when the lawyer reasonably believes that the client cannot adequately act in the client’s own best interest.”(6) In those circumstances, the lawyer either may seek the appointment of a guardian or “take other protective action.” See Rule 1.14(b) (emphasis added). The Committee interprets the phrase “take other protective action” to permit disclosure of the client’s stated intent to commit suicide if the lawyer reasonably believes that the client intends to carry out the threatened suicide if sent to jail. Put another way, any differing interpretation of “other protective action” would defeat the purpose of Rule 1.14(b) – namely, protecting the health and safety of a client who the lawyer reasonably believes is unable to act in his or her own interest.

The Restatement recognizes an exception to the general duty of confidentiality and client disclosure based upon “the overriding value of life and physical integrity.” Comment b., Restatement (Third) of the Law Governing Lawyers § 66. Other states that have addressed this issue frame the attorney’s act of disclosure in such a situation as reflective of “certain principles of conduct that a lawyer is obligated to uphold by the very nature of their office and its relationship to society.”

These principles of conduct are the threads of our social fabric. None is more basic than society’s concern for the preservation of human life. A lawyer cannot be unmindful of that concern.

N.Y. St. Bar. Assn. Comm. Prof. Eth. Op. 486 (1978). That basic principle – “society’s concern for the preservation of human life” – is the foundation upon which each of the seven other state bar associations and the American Bar Association have based their conclusion that an attorney may disclose to the proper authorities the client’s stated intention to commit suicide.(7) The American Bar Association has concluded that an attorney could disclose the client’s declared intent to commit suicide to a third person, rationalizing that this was permissible when the attorney has reason to believe that the client cannot adequately act in the client’s own interests. 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)). See also ABA Model Rules of Prof’l Conduct R. 1.14 cmt. at 245 (5th ed. 2003). 

The lawyer’s disclosure must be limited to the information the lawyer reasonably believes is necessary to aid the client. See, e.g., Pa. Bar. Assn. Comm. Leg. Eth. Prof. Resp. Op. 90-26 (1990); Utah State Bar Op. 95. Cf. Comment, ARPC 1.6(b), “Disclosure Adverse to Client,” at 5-6 (explaining that the lawyer has professional discretion to reveal that a client intends prospective conduct that is likely to result in imminent death or substantial bodily harm and that such discretion requires consideration of several factors). 

If the lawyer decides to disclose the client’s stated intention to commit suicide, the question then becomes to whom is the lawyer’s disclosure made? It is the Committee’s opinion that depending upon the circumstances known to the lawyer at that time, appropriate entities for the lawyer to contact could include mental health authorities as well as law enforcement authorities. In addition to these entities, individuals such as family members or clergy could be appropriate resources for the lawyer to contact. See, e.g., Pa. Bar Assn. Comm. Leg. Eth. Prof. Resp. Op. 93-43 (1993); Pa. Bar Assn. Comm. Leg. Eth. Prof. Resp. Op. 90-26 (1990).

 This opinion does not address the issue of what kind of non-legal advice a lawyer might give to a suicidal client. The attorney can recommend that the client seek the services of a mental health professional or contact their own doctor, a crisis hotline, or friend or relative who could help arrange for appropriate intervention or care. The attorney also may seek professional guidance as to what to do under such circumstances. See 74 Conn. B.J. at 239 n.2; Pa. Bar Assn. Comm. Leg. Eth. Prof. Resp. Op. 93-43 (1993).

Finally, there is the question of whether the attorney can continue to represent the client after having made such a disclosure. Alaska Rule 1.14 does not provide express guidance on this issue, but rather implies the continuation of the lawyer-client relationship.(8) The American Bar Association further states that although withdrawal may be an option for the lawyer, depending upon the degree of the client’s “impairment,” “it is not favored.” See ABA Model Rules of Prof’l Conduct R. 1.14 cmt. at 242-43 (5th ed. 2003).

Approved by the Alaska Bar Association Ethics Committee on April 7, 2005.

Adopted by the Board of Governors on May 10, 2005. 

[2]      In Canada –

See www.cba.org/CBA/epiigram/february2002/ the issue was raised and framed as follows:

(b) Imminent Danger or Harm

(i) Background

In Smith v. Jones, [1999] 1 S.C.R. 455, the Supreme Court of Canada considered solicitor-client privilege in the context of a psychiatric report. Mr. Jones was convicted of aggravated assault. His lawyer retained Dr. Smith, a forensic psychiatrist, to provide a psychiatric assessment of Mr. Jones, which the lawyer hoped to use at the sentencing hearing. Dr. Smith concluded that Mr. Jones was dangerous and would likely commit other similar offences and kill someone unless he received treatment. When Dr. Smith learned that the lawyer was not going to present his report at the sentencing hearing, he asked the court if he could disclose the information given to him in confidence by Mr. Jones. Both the British Columbia Supreme Court and the Court of Appeal held that Dr. Smith could disclose the information because there is a public safety exception to the confidentiality rule. The Court of Appeal, however, found that court rules could not require Dr. Smith to disclose the information. 

The Supreme Court of Canada ruled that the doctor’s information concerning public safety could be disclosed. It held that the solicitor-client privilege can be set aside when there are serious issues of public safety. It found that there are three factors to be taken into account when deciding if public safety concerns outweigh solicitor-client privilege:

(1) Is there a clear risk to an identifiable person or group of persons? 
(2) Is there a risk of serious bodily harm or death?
(3) Is the danger imminent?

Lawyers in all areas of practice, not just criminal law, face the challenge of balancing the prevention of future harm with their professional obligations. Family lawyers may hear about potential spousal assault. Estate lawyers may be advised of a planned suicide, which arguably does not fit within the current rule because it is not a crime. Business lawyers may be consulted about a client’s fraudulent activities, which may cause economic harm to others.

In some Canadian jurisdictions, law society rules say that a lawyer may disclose confidential client information when the disclosure is necessary to prevent a crime involving death or serious bodily harm (e.g. British Columbia (Chapter 5, Rule 12)). In Ontario, Rule 2.03(3) adopts the test in Smith v. Jones, supra as the only exception bearing on the prevention of harm. In other jurisdictions, a lawyer must disclose confidential information to prevent a crime which is likely to result in death or bodily harm (e.g. Alberta (Chapter 7, Rule 8)).

(ii) Questions for the Profession

The CBA Code says that a lawyer may disclose confidential client information to prevent a crime and that disclosure is “mandatory when the anticipated crime is one involving violence” (Chapter IV, Commentary 11). Should there be a more detailed commentary on when disclosure is permissible in situations of imminent harm? Is it acceptable, for example, for a lawyer to disclose information about a client’s planned suicide, even though suicide is not a crime? Should the CBA Code define circumstances in which a lawyer must disclose confidential client information? 

[3]    In Ontario – 

Note that the Ontario Rules of Professional Conduct make no mention of the CBA’s obligation on a lawyer to disclose “to prevent a crime” involving violence, see CBA Code ch. iv, comm. 11: “Disclosure of information necessary to prevent a crime will be justified if the lawyer has reasonable grounds for believing that a crime is likely to be committed and will be mandatory when the anticipated crime is one involving violence.”

See R. 2.03 (3) “Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or group of death or serious bodily harm, including serious psychological harm that substantially interferes with health or well-being, the lawyer may disclose, pursuant to judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required.”

Indeed all provincial governing bodies aside from Ontario restrict the disclosure to prevention of future crimes. Only in Ontario does this exception to confidentiality condone disclosure where serious preventable harm would flow from a non-criminal occurrence.

[For the sake of accuracy, New Brunswick’s exception applies to both “criminal or fraudulent transactions”, which would include non-criminal fraud – and I purposely ignored this detail].

This distinction between Ontario and the other provinces is often overlooked by respected commentators, e.g., the term “future-crime” [rather than “future-harm”] is used by G. MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (Toronto: Carswell, 1993) at 3.4. 

Conclusion 

Therefore, I would think that in Ontario, if there is an “imminent risk” to an “identifiable person”, in this case the client, “of death or serious bodily harm”, which includes suicide, the lawyer may disclose, pursuant to judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm. (And the operative word is “may”). 

[4]    Re: Quebec –

See also Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) Inc., [2004] 1 S.C.R. 456: 

20     The Professional Code, R.S.Q., c. C-26, requires all members of professional orders, not just lawyers and notaries, to uphold professional secrecy (see: Y.-M. Morissette and D. W. Shuman, “Le secret professionnel au Québec: une hydre à trente-neuf têtes rôde dans le droit de la preuve” (1984), 25 C. de D. 501, at p. 505). Section 60.4 of the Professional Code defines the obligation to uphold professional secrecy in the following terms:

60.4. Every professional must preserve the secrecy of all confidential information that becomes known to him in the practice of his profession.

 He may be released from his obligation of professional secrecy only with the authorization of his client or where so ordered by law.

The professional may, in addition, communicate information that is protected by professional secrecy, in order to prevent an act of violence, including a suicide, where he has reasonable cause to believe that there is an imminent danger of death or serious bodily injury to a person or an identifiable group of persons. However, the professional may only communicate the information to a person exposed to the danger or that person’s representative, and to the persons who can come to that person’s aid. The professional may only communicate such information as is necessary to achieve the purposes for which the information is communicated.

21     Although the Professional Code imposes an obligation to uphold professional secrecy on all professionals, including lawyers, s. 131 of the Act respecting the Barreau du Québec, R.S.Q., c. B-1, also addresses this issue. This section reaffirms the right to professional secrecy while setting out some of its limits, as the corresponding provision in the Professional Code also does:

(1) An advocate must keep absolutely secret the confidences made to him by reason of his profession.

(2) Such obligation, however, shall not apply when the advocate is expressly or implicitly relieved therefrom by the person who made such confidences to him or where so ordered by law.

(3) An advocate may, in addition, communicate information that is protected by professional secrecy, in order to prevent an act of violence, including a suicide, where the advocate has reasonable cause to believe that there is an imminent danger of death or serious bodily injury to a person or an identifiable group of persons. However, the advocate may only communicate the information to a person exposed to the danger or that person’s representative, and to the persons who can come to that person’s aid. The advocate may only communicate such information as is necessary to achieve the purposes for which the information is communicated.

Leave a Reply

Your email address will not be published. Required fields are marked *

Serving South Ontario