UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 99-12
Facts
Lawyer A represents Client in a domestic matter. Following a temporary hearing, Lawyer A received a letter from Client stating that on a specific date Client will end his life based on his disagreement with the court’s decision. Client also wrote Spouse’s lawyer a similar letter. In that letter, Client did not directly threaten to take his own life, only that it would “all be over” by that date. Lawyer A believes the threat to be credible.
Questions
Recognizing a potential danger to the other lawyer and Spouse, what may Lawyer A ethically do to protect them?
What may Lawyer A ethically do to keep Client from harming himself?
Summary
Lawyer A would not violate his duty of confidentiality under Rule 1.6 by taking such action as is necessary to prevent his client from committing suicide and/or preventing harm to others.[1]
Opinion
A lawyer is not allowed to reveal information relating to the representation of the client unless the client consents or the disclosure is required to carry out the representation of the client. Rule 1.6(a); S.C. Bar Ethics Advisory Opinion 90-30. However, a lawyer may reveal, to the extent the lawyer reasonably believes is necessary, any information to prevent the client from committing a criminal act. Rule 1.6(b)(1); S.C. Bar Ethics Advisory Opinions 83-11 and 90-30. Under this exception, Lawyer A may reveal the information necessary to prevent a crime.
Suicide is a crime in South Carolina. State v. Lavelle, 34 S.C. 120, 13 S.E. 319 (1891); William S. McAninch, The Criminal Law in South Carolina, 3d Edition (1996), p.65. And, certainly bodily harm to others, as intimated by the client in his letter to Spouse’s Lawyer, is a crime.
On occasion, during the course of a representation, a client’s mental health deteriorates to a point where the client does not act in his own interests. Rule 1.14 permits a lawyer to seek appropriate protection for the client, even though it may involve the disclosure of information regarding a client’s disability. This may even include seeking the appointment of a guardian or conservator, or other appropriate protective action. Such a drastic course of action can be taken only when the lawyer “reasonably believes the client cannot adequately act in the client’s own interest.” Rule 1.14(b).
Even if the modern era has diminished the understanding of suicide as a crime, we are persuaded that the “overriding social concern” for the preservation of human life dictates that a lawyer may, and even should, take reasonable steps to preserve the life and well-being of his client and others.
ABA Informal Opinion 83-1500 gives good guidance. That opinion involves a situation where a client who retained a lawyer to draft a will confided to her lawyer a desire to take her own life. In the subject jurisdiction, unlike South Carolina, suicide and attempted suicide was not a crime. Yet, the opinion recognized the “overriding social concern for the preservation of human life” and the opinion strongly recommended that the lawyer should disclose the information “as a last resort when the lawyer’s efforts to counsel the client have apparently failed.” The ABA Informal Opinion cited opinions from both the Massachusetts and New York bars to support this reasoning.
As stated in the Comment to Rule 1.6, a lawyer has “professional discretion to reveal information in order to prevent such consequences” [criminal action]. The Comment further says:
“The lawyer’s exercise of discretion requires consideration of such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in questions. Where practical, the lawyer should seek to persuade the client to take suitable action. . . .”
Lawyer A may consider first meeting with his client to encourage him to rethink his actions and to seek counseling from his minister, priest, rabbi and/or other suitable professional. If the client is non-responsive, or if the lawyer feels the client may carry out his threats to harm himself and/or others, the lawyer could immediately arrange a conference with the Family Court Administrative Judge and opposing counsel, or take other suitable action to prevent harm to the client and others.
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[1] Because of the urgency and gravity of the inquiry, the Bar Ethics Advisory Committee adopted this summary at its meeting on July 23, 1999, and asked the South Carolina Bar to report the summary to the inquiring Lawyer straightaway. It was understood that a formal opinion would follow.