When A Client Makes A Threat
Lawyers face a confidentiality dilemma when they know of a client’s
ongoing or threatened criminal conduct
By Wendy Patrick Mazzarella
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Mazzarella |
You are preparing for trial with a new client in your office one afternoon.
As you discuss the anticipated testimony against her by the opposition’s
star witness, she pierces you with an icy stare and informs you that she has
plans to “take care of” that problem. Confused, you ask her what
she is talking about. With an unnerving calmness, she informs you that you
need not waste any more time preparing your cross-examination of that witness.
You take her statement as a threat to harm the witness. Ethically, what can
you do? What must you do?
Client confidentiality is a hallmark of an attorney-client relationship. But
there are exceptions to the general rule that information imparted within the
context of such a relationship must always be kept confidential. There are
legal and ethical rules that explain the circumstances under which California
attorneys may, but are not required to, reveal confidential information imparted
to them by their clients.
Business and Professions Code
California Business and Professions Code §6068 enumerates the duties of an
attorney. BP 6068(e)(1) states that one of these duties is “[t]o maintain
inviolate the confidence, and at every peril to himself or herself to preserve
the secrets, of his or her client.”
BP 6068(e)(2), however, states that “[n]otwithstanding paragraph (1),
an attorney may, but is not required to, reveal confidential information relating
to the representation of a client to the extent that the attorney reasonably
believes the disclosure is necessary to prevent a criminal act that the attorney
reasonably believes is likely to result in death of, or substantial bodily
harm to, an individual.”
Rules of Professional Conduct
This important exception is further developed in California Rule of Professional
Conduct 3-100, which states in pertinent part that:
(A) A member shall not reveal information protected from disclosure by Business
and Professions Code §6068, subdivision (e)(1) without the informed consent
of the client, or as provided in paragraph (B) of this rule;
(B) A member may, but is not required to, reveal confidential information
relating to the representation of a client to the extent that the member reasonably
believes the disclosure is necessary to prevent a criminal act that the member
reasonably believes is likely to result in death of, or substantial bodily
harm to, an individual.
(C) Before revealing confidential information to prevent a criminal act as
provided in paragraph (B), a member shall, if reasonable under the circumstances:
(1) make a good faith effort to persuade the client not to commit or to continue
the criminal act and/or to pursue a course of conduct that will prevent the
threatened death or substantial bodily harm, and (2) inform the client at an
appropriate time of the ability or decision to reveal confidential information
per subsection (B).
Subsection (D) warns that a lawyer’s disclosure under (B) must be no
greater than necessary to prevent the criminal act, given the information the
lawyer knows about at the time of the disclosure.
Is a lawyer in trouble with the California State Bar if despite her client’s
threats to kill a witness, she does nothing? The answer is no. Rule 3-100(E)
provides that if an attorney decides not to reveal information that would have
been permitted under (B), there is nonetheless no violation of this rule.
Discussion Section [2] points out that a lawyer’s duty of confidentiality
is broader than the often-cited work product and attorney-client privileges.
Discussion Section [9] analyzes the factors to be considered before advising
a client per subsection (C)(2) of the lawyer’s ability to reveal confidential
information, recognizing that in some circumstances this revelation could increase
the risk of harm not only to the intended victim but also to the client and
his or her family, and to the lawyer and his or her family or associates.
Discussion Section [11] recognizes that after disclosure has been made pursuant
to this section, withdrawal will likely be required per CRPC 3-700(B), unless
the lawyer can obtain consent to continued representation. The lawyer must
tell the client about having disclosed confidential information “unless
the member has a compelling interest in not informing the client, such as to
protect the member, the member’s family or a third person from the risk
of death or substantial bodily harm.”
Evidence Code Section 956.5
The California Evidence Code includes similar language. Regarding the attorney-client
privilege, Section 956.5 states that: “[t]here is no privilege under
this article if the lawyer reasonably believes that disclosure of any confidential
communication relating to representation of a client is necessary to prevent
a criminal act that the lawyer reasonably believes is likely to result in death
of, or substantial bodily harm to, an individual.” Section 956.5 is expressly
mentioned as an analogous code section in Discussion Section [3] of CRPC 3-100.
Discussion Section [3], however, distinguishes the situation of future criminality
from past crimes, with a reminder that 956.5 does not permit a member to reveal
confidential information relating to a client’s past completed criminal
acts.
So if during a client meeting in your office, your client said something that
caused you to fear that she intended to seriously harm or kill one of the witnesses
against her, you would have the option of revealing your client’s plan
under this Code Section as an exception to the attorney-client privilege.
On the other hand, if your client sought your legal assistance in facilitating
her access to a witness to carry out her criminal intentions, the attorney-client
privilege would be lost under Evidence Code Section 956 which states that: “There
is no privilege under this article if the services of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to commit a crime or
a fraud.”
How does this come up?
Consider the family law client who loses his temper in an office meeting with
his lawyer and announces that he is driving directly over to his ex-wife’s
house in violation of the restraining order to “take care of this problem
once and for all.” Is the lawyer justified in calling the client’s
ex-wife to warn her of the client’s arrival? What if the lawyer decides
to call the police instead? Would either course of action be justified under
these facts?
In this scenario, the attorney might feel that the urgency of the situation
did not afford the time necessary to talk to the client about the decision
to reveal confidential information. Whether this decision was reasonable would
depend on a multitude of factors including whether the client had a history
of violence toward his ex-wife and how far away she lived.
There are a variety of other scenarios that have spurred lively discussion
among ethicists. One of these is the client who brags about the fancy new sports
car he just purchased and tells his lawyer he intends to “find out what
she can do” on the way home from your office. As the lawyer, should you
call the Highway Patrol to warn them about the safety risk your client presents?
What if you knew your client was already a terribly reckless driver even when
obeying the speed limit? What if your client tells you this after the two of
you have just finished having a couple of cocktails at the local pub?
Or consider the suicidal client. What do you do when your severely depressed
client tells you one day that she “just can’t take any more” and
plans to end her misery. If your client is to be taken seriously, the result
of her act is “likely to result in death of, or substantial bodily harm
to, an individual.”
But you still would not be able to disclose the information because suicide
is not a “criminal act” in California or any other state. (In
re Joseph G. (1983) 34 Cal. 3d 429, 433; Donaldson v. Lungren (1992)
2 Cal. App. 4th 1614, 1624. Note that deliberately aiding or encouraging another
person to commit suicide is a crime in California. California Penal Code § 401; In
re Ryan N. (2003) 92 Cal. App. 4th 1359.)
Other scenarios have been proposed that are very difficult to analyze under
existing ethics rules. These range from the dilemma of knowing the “wrong
guy” is sitting on death row after your client confessed to you that
he actually committed the crime, to your concern over your client’s putting
herself in danger of her life by going back to a partner who has explicitly
threatened to kill her. We look forward to future case law that will hopefully
address some of these issues.
Serious or just venting?
The rules permitting disclosure of client confidential information require
the lawyer to make a judgment call regarding the seriousness of a client’s
expressed or implied intentions. Unless the lawyer has a significant or longstanding
relationship with the client, this judgment call may be difficult.
Obviously, if you reasonably believe your client is going to seriously harm
or kill the main witness against her, you have the option of revealing her
plan. In most cases, however, the threat will not be clear. If your client
merely informs you that you need not waste your time preparing your cross-examination
of a witness, several things must factor into your threat analysis.
Your perception of the seriousness of your client’s statements will
be affected by her demeanor, the context of the statement, whether she had
ever made similar statements, and your prior knowledge and relationship with
her.
If a client calmly tells you “not to worry any more” about a particular
witness or “not to be surprised” if a witness fails to show up
in court, many defense attorneys in a family violence case would tell you such
statements might indicate the client knew that the victim had a change of heart
and was planning to recant their testimony or fail to show up in court. But
in a case where your client makes the statements in anger or with an eerie
calmness and the star witness is a stranger to your client, such statements
take on new meaning.
In assisting you in making this determination, 3-110 Discussion Section [6]
contains a list of factors to be considered in deciding whether or not to reveal
confidential information. These include the amount of time that the member
has to make a decision about disclosure, whether the client has made similar
threats before and whether they have ever acted or attempted to act upon them,
and the nature and extent of information that must be disclosed to prevent
the criminal act or threatened harm.
‘Mirandizing’ your client
The permissible exceptions to the attorney-client privilege have prompted
spirited debate regarding what, if any, warnings or disclosures should be given
to a client at the beginning of the representation. Should the lawyer tell
the client at the inception of the representation that should the client reveal
the intent to commit certain criminal acts, the lawyer has the option of revealing
the client’s statements to others, including law enforcement?
Perhaps have the warning mounted on a sign to hang in the lawyer’s office?
Obviously such warnings could suppress the client’s willingness to be
forthcoming with information, could seriously chill open dialogue about the
case, and may cause some potential clients to decide to proceed pro per or
seek another lawyer.
In fact, such warnings would likely prevent the lawyer from ever learning
about the client’s criminal intentions in the first place, thereby precluding
the lawyer from ever being in a position where he or she was able to take steps
to avert the harm. On the other hand, if a lawyer learns that someone truly
is at risk of death or great bodily injury, a prior admonition that such communications
may not be kept confidential will give comfort to the lawyer who decides to
reveal them.
In another interesting twist, advance warnings given by some attorneys in
the legal community could provide a competitive advantage to lawyers who chose
not to provide such disclosures or warnings. And can lawyers actually promise
clients in advance that they will never elect to reveal their client’s
confidences, even when permitted?
While this may not violate the California Rules of Professional Conduct, a
lawyer would be well advised to consider potential civil liability before making
such a commitment. And of course the lawyer runs into terrible trouble when
he or she becomes the subject of the client’s criminal intentions.
Conclusion
All attorneys owe a duty of loyalty to their clients. They should by all means
work diligently on their cases and engage in faithful advocacy. They must protect
their client’s rights and keep their communications in the utmost confidence.
When a client engages in ongoing criminal activity, however, the lawyer’s
duties are different.
Awareness of the rules and principles cited above will permit attorneys faced
with this dilemma to evaluate their options in light of applicable ethical
and legal concerns, in order to make an appropriate decision about how to handle
the ethical dilemmas raised by a client’s ongoing or threatened criminal
conduct. Good luck!
• This article does not constitute legal advice. Please shepardize all case
law before using.
• Wendy Patrick Mazzarella is a San Diego County Deputy District Attorney
in the Sex Crimes and Stalking Division. She is in her fourth year as chair
of the San Diego County Bar Association Legal Ethics Committee and is one of
16 members of the California State Bar Committee on Professional Responsibility
and Conduct.
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the standards for approved education activities prescribed by the rules and
regulations of the State Bar of California governing minimum continuing legal
education.
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- In California, a lawyer who reasonably fears his or her client is going
to kill someone else has a duty to either inform the authorities, or at least
the court.
- The criminal act exception in BP 6068(e)(2) only covers information your
client explicitly tells you about.
- A lawyer is permitted to reveal as much information relating to the representation
of his or her client as he or she deems necessary in order to prevent a criminal
act that will result in the requisite harm, even if the client is not expected
to be the one who inflicts the harm.
- A lawyer’s duty of confidentiality is broader than the often cited
work product and attorney-client privileges.
- CRPC 3-100 (B) permits an attorney to disclose information that is protected
by the attorney-client privilege.
- After a lawyer discloses confidential information per CRPC 3-100 (B), he
or she can continue to represent the client as long as the client consents.
- A lawyer has the option of revealing any kind of confidential information
received from a client that he or she believes will result in the death of,
or substantial bodily harm to, an individual.
- In deciding whether or not to reveal confidential information, a lawyer
can consider whether the client has made similar threats before and whether
they have ever acted or attempted to act upon them.
- Once a lawyer discloses confidential information per CRPC 3-100 (B), the
lawyer must, in all circumstances, tell the client about having disclosed the
confidential information.
- A lawyer who finds out that a client retained him or her in order to harm
a witness would be permitted to reveal this information regardless of how serious
the harm to the witness might be.
- Evidence Code Section 956.5 would permit a lawyer to alert the authorities
if he or she believed a client was currently engaging in embezzlement.
- There are some cases in which a lawyer might reasonably decide not to
advise his or her client of their ability to reveal confidential information
per CRPC (C)(2).
- A lawyer is not protected by CRPC 3-100 if he or she decides to simply “err
on the side of caution” and disclose every statement his or her client
makes that might insinuate the client is dangerous.
- Business and Professions Code Section 6068(e) enumerates the dangerous
client exception to the attorney-client privilege.
- There may be some information that a lawyer would not be justified in
revealing under BP 6068(e) or CRPC 3-100(B) even if he or she felt their client
posed a risk of death orsubstantial bodily harm to someone else.
- If a lawyer fears his or her client is on the way over to the home of
the client’s ex-spouse to inflict substantial bodily harm or death, before
revealing confidential information to prevent the criminal act, the lawyer
may take it upon themselves to attempt to prevent the threatened harm.
- If a lawyer decides he or she is going to reveal a client’s confidential
information under CRPC (B), before doing so, he or she must always inform the
client.
- If a lawyer reasonably believes his or her client is about to commit a
deadly crime, he or she can simply turn over the client’s file to law
enforcement.
- A lawyer has a duty to reveal his or her client’s ongoing criminality
under Evidence Code Section 956.5.
- Under Evidence Code Section 956, a lawyer may reveal a client’s
confidential information relating to a crime of fraud by another person.
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