|Oregon State Bar Bulletin AUGUST/SEPTEMBER 2011|
When Doing the "Right" Thing May be the Wrong Thing to Do
By Helen Hierschbiel
Have you ever represented a client who you were concerned might commit suicide? Or had a client tell you that he was going to kill someone? Did you tell others in order to stop your client’s plan?
Few ethical dilemmas have proven more challenging to resolve than those dealing with whether and when a lawyer should be allowed to reveal confidential information to prevent harm. Sometimes, solving these dilemmas requires lawyers to choose between complying with fundamental obligations to clients and following their own conscience. Understandably, judgment can become clouded under such tension. If you take nothing else from this article, let it be this: be thoughtful, thorough and seek input from others before deciding whether, how and to whom to disclose a client’s confidential information.
A lawyer’s duty to protect a client’s confidential information lies at the heart of the lawyer-client relationship. Frease v. Glazer, 330 Or 364, 370 (2000). “Our legal system is premised on the strict adherence to this principle of confidentiality, and ‘(t)he Supreme Court has long held attorneys to stringent standards of loyalty and fairness with respect to their clients.’ ” McClure v. Thompson, 323 F3d 1233, 1242 (9th Cir 2003).
In Oregon, the duty is codified in both ORS 9.460(3) and Oregon RPC 1.6, which prohibit lawyers from revealing information relating to the representation of a client. “Information relating to the representation of a client” includes information protected by the attorney-client privilege and “other information gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” RPC 1.0(f). Thus, the duty of confidentiality extends beyond the protection afforded to client communications by the evidentiary rules of privilege to all information related to the representation of the client.1
The purpose of the duty is not just to encourage full and frank discussion — such that clients share not only the good, but the bad and the ugly — but also to facilitate a relationship of trust between the lawyer and client, such that the client, confident of the lawyer’s loyalty, can hear and accept both good and bad news and heed the lawyer’s advice.2
Notwithstanding the fundamental importance of the duty of confidentiality, exceptions do exist, in part to reconcile conflicting obligations of the lawyer and also to serve other competing and compelling public interests. Two of the more challenging exceptions to understand in practice are found in RPC 1.6(b)(1) & (2):
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
1) To disclose the intention of the lawyer’s client to commit a crime and the information necessary to prevent the crime;
2) To prevent reasonably certain death or substantial bodily harm.
While these two exceptions are not identical, they do have similarities. First and most importantly, they only permit disclosure; they do not require it. A requirement to disclose may stem from other sources (such as a court order), but it does not arise out of RPC 1.6(b).
Second, assuming either exception applies, disclosure is only allowed “to the extent the lawyer reasonably believes necessary” to accomplish the purpose of the exceptions, that is, to prevent the crime or harm. Oregon RPC 1.0(l) defines “reasonably believes” to mean both that the lawyer actually believes the matter in question and the circumstances are such that the belief is reasonable. The limitation on disclosure applies to the scope of both the information disclosed and the persons to whom the information is disclosed. See In re Fuller, 621 NW2d 460 (Minn 2001)(sending more than 25 letters to individuals and government agencies accusing client of chemical dependency, fraud, intimidation and murder, constituted a disclosure of more information to more persons than permissible).
In other words, when availing themselves of this exception, lawyers should be cautious about how much information is disclosed and to whom. In most, but not all, cases this means revealing only that information directly related to the intended crime or impending harm, and only to the intended victim and/or law enforcement authorities. The devil, of course, is in the details. In order to urge law enforcement or the victim to actually take protective action, the lawyer may find it necessary to reveal more information than may at first seem appropriate. Lawyers would be wise to start with baby steps: provide limited information at the outset, adding to the disclosure only if the listener does not seem to understand the scope or imminence of the danger.
Future Conduct vs. Future Harm
Oregon RPC 1.6(b)(1) by its terms only applies when a client intends to commit a crime in the future. It does not allow for disclosure of a crime that the client has already committed. Some past acts, however, have continuing consequences that may also be criminal in nature. Theft can become possession of stolen property, for instance. As to whether a lawyer may disclose these “continuing crimes,” several jurisdictions have concluded that lawyers may not reveal the client’s continuing crime where doing so would require revealing the client’s past crime. See, e.g., Arizona Ethics Op 2001-14 (2001). New York City Ethics Op 2002-1 (2002) concluded that
Attorneys may not disclose client confidences and secrets relating to a client’s completed criminal act even though the effects may be continuing where that criminal act is the very subject on which the client is consulting the attorney and the client’s completed conduct has satisfied all elements of the crime, i.e., where the continuing offense is ‘factually indistinguishable from a past offense’ aside from temporal continuation.’
On the other hand, Oregon RPC 1.6(b)(2), while also focused on preventing future harm, arguably may allow disclosure of past misconduct by the client. While not building authority in Oregon, ABA Model Rule 1.6, Comment , says that:
…a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.
How Certain Do You Have To Be?
In order for the exception provided by Oregon RPC 1.6(b)(2) to apply, death or substantial bodily injury must be “reasonably certain.” Comment  to ABA Model Rule 1.6 says that “[s]uch harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.”
Notably, the future crime exception does not specify the degree of certainty a lawyer must have about the client’s intent to commit a crime. Authorities that have examined similar rules agree that mere suspicion is not enough. Instead, a lawyer’s belief must at minimum be objectively reasonable and have some foundation in fact. See, e.g., New York City Ethics Op No 2002-1(lawyer may not reveal client confidences based on mere suspicion that client intends to commit crime). Similarly, the Ninth Circuit has held that “the guiding rule for purposes of the exception for preventing criminal acts is objective reasonableness in light of the surrounding circumstances.” McClure v. Thompson, 323 F3d 1233, 1245 (9th Cir 2003)(interpreting former ABA Model Rule 1.6(b)(1)(1983)).
Without a standard specified in its rule, the Massachusetts Legal Ethics Committee also adopted the “reasonably likely” standard, saying that the standard should not be so high that the important goal of preventing serious harm to third persons will be defeated, but also not be so low that the mere possibility of a crime triggers its application. Massachusetts Ethics Op No 90-2.
Lessons From McClure
Four days after Carol Jones was found dead in her home, Robert McClure hired a lawyer to represent him in defending against charges that he had murdered Jones and abducted her two children, ages 10 and 14. Over the next several days, McClure revealed to his lawyer where the children could be found, drawing him a map of their locations. Based on his conversations with McClure and the family, the lawyer believed that there was a possibility, albeit remote, that the children were still alive. Therefore, on the third day after being retained by McClure, and without McClure’s authorization, the lawyer arranged for his secretary to make an anonymous phone call to the sheriff disclosing the children’s locations. The sheriff found the children, who had each died from a single gunshot wound to the head. McClure was then indicted and later convicted for the murders of Jones and her two children. At trial, the prosecution introduced extensive evidence obtained from the discovery of the children’s bodies and testimony regarding the anonymous phone call. McClure at 1235-1236.
The issue before the Ninth Circuit was whether McClure received ineffective assistance of counsel because his lawyer revealed confidential information regarding the location of the children. Specifically, the court sought to determine whether the lawyer reasonably believed disclosure was necessary to prevent the client from committing a criminal act that he believed was likely to result in imminent death or substantial bodily harm.3 McClure at 1243.
Relying heavily on the district court’s findings regarding contested facts, the Ninth Circuit concluded that the lawyer’s disclosure of McClure’s confidential information was allowed by ABA Model Rule 1.6(b)(1), but warned nonetheless, “[t]his is a close case, even after we give the required deference to the state and district courts. The choices made by McClure’s counsel give us significant pause, and, were we deciding this case as an original matter, we might decide it differently.” McClure at 1247.
In a lengthy and impassioned dissent, Judge Ferguson did not find the lawyer’s belief about the children’s status to be reasonable and was troubled by the lawyer’s failure to conduct any investigation into whether the children were in fact alive, by either asking McClure directly or by driving to the children’s locations on his own. In sum, Judge Ferguson writes,
[W]hether or not [the lawyer] did the “right” thing does not diminish the fact that his doing so constituted an abdication of his professional duties and rendered his performance as McClure’s defense attorney deficient under the Sixth Amendment. [The lawyer’s] concern for the children is certainly understandable and laudable, however, it does not negate the infirmity of McClure’s conviction. McClure at 1256.
In the end, McClure’s legal challenges failed and his lawyer escaped a finding of misconduct by the skin of his teeth. What lessons should lawyers take from McClure? If you are considering disclosure of confidential information against your client’s interests, take care to ensure that your belief about your client’s intentions or about the possible harm is truly reasonable and based on objective facts. Investigate or inquire further, and test your reasonableness by discussing with colleagues—to the extent allowed by the rules, of course. Consider the seriousness and imminence of the potential injury to others, whether alternatives exist to prevent the potential injury, and the ultimate harm to your client. You need not ignore your own conscience; but you do need to remember the duties you assumed when you took your oath as a lawyer and again when you undertook to represent this particular client.
1. The overlap between privilege and the ethical duty of confidentiality, and the distinctions between the crime-fraud exception to privilege and the exceptions discussed below is beyond the scope of this article.
2. See Comment  to ABA Model Rule 1.6.
3. Although the case arose in Oregon, the Ninth Circuit applied ABA Model Rule 1.6(b)(1)(1983) in evaluating the lawyer’s conduct.
ABOUT THE AUTHOR
Helen Hierschbiel is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by email at firstname.lastname@example.org.
© 2011 Helen Hierschbiel