By Gail Ferguson
Bar Ethics Staff
If a client discloses an intent to commit suicide, a lawyer’s first obligations should be the same as any sensitive and understanding individual. “The client’s disclosure may be a cry for attention or help, and the lawyer should make a special effort to give the client sympathetic counseling.” New York Ethics Opinion 486. The lawyer should show appropriate concern, encourage the client to seek help, and the lawyer may counsel the client against suicide. See id; e.g., Connecticut Ethics Opinion 04-10.
Rule 4-1.6 (a), Rules Regulating The Florida Bar, requires a lawyer to keep confidential all information relating to a representation, including a client’s intent to commit suicide, but the rule permits a lawyer to reveal information if the client consents after consultation. The lawyer is advised to consult with the client and if appropriate to ask for consent to disclose the client’s intent. Connecticut Ethics Opinion 49. During the consultation, the lawyer may recommend the client seek the services of a mental health professional or advise the client to call his or her own doctor, a local mental health clinic, or a crisis hotline. Alaska Ethics Opinion 2005-1. The lawyer may also recommend the client call a friend or relative who could help in arranging for appropriate intervention or care. Where possible, the lawyer should encourage and assist the client to seek needed help. This obligation is especially strong where it appears that the client may not be mentally capable of making rational decisions. New York Ethics Opinion 486 n.1.
A client who threatens suicide presents a lawyer with a difficult dilemma in trying “to balance the law’s longstanding policies concerning the protection of human life against customary professional standards involving the preservation of client confidences and secrets.” The lawyer may, and generally should, take appropriate action to keep the client from committing suicide, and for this purpose, the lawyer may be required to reveal the client’s suicidal intent to others. If the client does not consent to the disclosure after consultation, or it is either impossible or inadvisable to consult with the client about disclosure, the question becomes whether the Rules of Professional Conduct mandate or permit disclosure without the client’s consent. Connecticut Ethics Opinion 49.
Rule 4-1.6 (b)(2) provides a mandatory exception to the confidentiality rule and requires a lawyer to reveal information to the extent the lawyer reasonably believes necessary to prevent a death or substantial bodily harm to another. Thus, if the client does not consent to disclosure, the lawyer may have a mandatory obligation to disclose the client’s intent if the lawyer reasonably believes that disclosure is necessary to prevent the client from taking his or her own life. The question whether the disclosure is necessary to prevent death or substantial bodily harm is fact specific, but such harm may be reasonably certain to occur “if it will be suffered immediately or if there is a present and substantial threat that the person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.” Illinois Ethics Opinion 17-01 (discussing Illinois’ mandatory disclosure requirement, which is similar to Florida’s mandatory exception under the confidentiality rule).
The Rules of Professional Conduct do not provide specific guidance regarding what information may be disclosed or to whom, but the lawyer is cautioned that any mandatory or permissive disclosure of the client’s suicide threat “should be kept as narrow as possible and limited only to the information which is absolutely necessary to prevent the harm giving rise to the need to . . . breach the client’s confidences.” Pennsylvania Ethics Opinion 93-43; s Rule 4-1.6 (f) (“When disclosure is mandated or permitted, the lawyer must disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.”); Connecticut Ethics Opinion 49 (“Disclosing client information could result in the client being institutionalized or stigmatized or becoming embroiled in an adversary proceeding to maintain his or her independence and dignity or suffering some other loss of autonomy or privacy.”). If necessary, a lawyer may disclose the situation to responsible family members, a physician, a mental health professional, the court, or some other appropriate individual or agency.
Most other jurisdictions do not have a mandatory exception to the confidentiality rule that would require a lawyer to disclose a client’s suicide intent, but many of those jurisdictions permit and encourage disclosure under the client under a disability rule, which in Florida is Rule 4-1.14 (b), or some other unwritten exception to the confidentiality rule, because of society’s concern for the preservation of human life. , Alaska Ethics Opinion 2005-1 (“The Restatement recognizes an exception to the general duty of confidentiality and client disclosure based upon ‘the overriding value of life and physical integrity.’”); South Carolina Ethics Opinion 99-12; New York City Judicial Ethics Opinion 1997-2; Utah Ethics Opinion 95; Alabama Ethics Opinion RO-95-06; Pennsylvania Ethics Opinion 93-43; Arizona Ethics Opinion 91-18 (permitting limited disclosure of a client’s suicidal intent, thus “allowing the attorney to respond humanely to what well may be his client’s cry for help”); Virginia Ethics Opinion 560 (“It is not improper for an attorney to disclose to appropriate mental health authorities the stated intentions of a client to leave the state and commit suicide.”); ABA Informal Opinion 83-1500 (“[D]isclosure by the lawyer of information relating to the representation to the extent necessary to serve the best interests of the client reasonably believed to be disabled is impliedly authorized within the meaning of Model Rule 1.6”); Massachusetts Ethics Opinion 79-61; New York Ethics Opinion 486. New Mexico Ethics Opinion 1987-1 (prohibiting disclosure of a client’s suicidal intent without consent, where suicide is not a crime).
Rule 4-1.14 (b) permits a lawyer to seek appointment of a guardian or to “take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.” The lawyer may disclose confidential information under Rule 4-1.14 (b) for the purpose of protecting a suicidal client whose judgment is impaired, in the opinion of the lawyer. The discretion to disclose a client’s suicide threat under Rule 4-1.14 (b) would likely override the prohibitions set forth in the confidentiality rule. Alaska Ethics Opinion 2005-1 (“[A]ny 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.”). Accordingly, whether disclosure of a client’s suicidal intent is mandatory or discretionary under the Rules of Professional Conduct, the threshold for disclosure is the same: whether the lawyer reasonably believes that disclosure is necessary to prevent death or substantial bodily harm.
Although counseling suicidal clients is beyond the scope of most lawyers’ training and experience, and it is beyond the scope of this column to provide advice regarding the “right way” to respond to a suicidal person, the above discussion regarding mandatory and permissive disclosure is presented for ethical guidance. Lawyers encountering a client who expresses an intent to commit suicide may also call the ethics hotline at 800-235-8619.