Question
I read about the tragedy in which an attorney was killed by the opposing party in a family law matter. It made me wonder which actions I can ethically take if a client is threatening to harm someone.
Answer
The Rules of Professional Conduct create minimum standards that a lawyer must follow when representing a client, but they do not address every situation. The question you pose requires making extraordinary determinations, depending on the seriousness of the threat from your client. Evaluating the severity of the threat is a judgment call that involves many factors.
The Rules do address confidentiality of client information. They require that a lawyer keep confidential all information learned during the course of representing a client and not disclose information unless the client gives consent or the disclosure is impliedly authorized to provide the agreed-upon representation. There are both mandatory and voluntary disclosure exceptions to the requirement of confidentiality that may come into play in the situation you describe.
Under SCR 20:1.6(b), if a client is legitimately threatening to commit a criminal act that would cause death or substantial bodily harm to another person, the lawyer may be required to disclose that information to the appropriate authorities. This mandatory disclosure has existed in the Wisconsin Rules for a long time but rarely is relevant. The lawyer is required to disclose confidential information only if the lawyer truly believes that the client is going to engage in some type of future criminal or fraudulent conduct that could cause death or serious bodily harm to another person. The disclosure only applies to prevent something from happening to another person and does not apply if the client is threatening to do harm to himself or herself. It is therefore a very narrow exception and mandates disclosure of client information only to prevent death or serious bodily harm to another.
A discretionary disclosure exemption, in SCR 20:1.6(c)(1), applies if a lawyer learns that his or her client is likely to engage in conduct that would cause death or substantial bodily harm to another person or to the client. Under this exception, the lawyer may disclose information in order to protect the safety of someone else or to protect the client from committing harm to himself or herself. Again, this exception allows the disclosure of client information at the lawyer’s discretion but rarely comes into play. This exception to the general rule of confidentiality is looked to if a client is seriously considering suicide and has made that known to the lawyer.
The disclosure only applies to prevent something from happening to another person and does not apply if the client is threatening to do harm to himself or herself.
An exception in SCR 20:1.6(c)(2) allows a lawyer to consider releasing confidential information if the lawyer believes that the client is likely to cause substantial harm to the property or interests of another person or has already taken action to do so and the lawyer’s services were used to help the client commit a crime or fraud upon someone else. This exception allows the lawyer to disclose confidential information learned from the representation if it would help to prevent an action being taken by a client or rectify action taken by the client that caused substantial harm to another person’s property interests. This exception applies to both prospective action and previous action that has occurred, but again is seldom applied.
Lawyers struggle when clients make threats either to their own safety or toward other people. It is very challenging to balance the interest of protection of others with the importance of confidentiality of client information. All lawyers hope to never face this type of dilemma but must recognize that the Rules of Professional Conduct provide guidance and limits on the information that lawyers can disclose.
