Your ears perk up when your client concludes what you had thought was just a session of blowing off steam. He's described his animosity toward the star witness testifying against him at trial, and expressed general exasperation at the legal mess he is in.
"Why do you need a gun?" you ask your client, suddenly anxious about what you have just heard. Does he intend to kill someone? Kill himself? He levels an icy stare at you and says: "Don't worry about it."
Suddenly, with a knot in your stomach, your thoughts race to recall the ethical rules and regulations that come into play when a lawyer realizes that he or she is representing someone who may be dangerous. And as a preliminary consideration, keep in mind that the client didn't really say he was planning on doing anything with that gun. Or did he?
In the wake of recent national tragedies involving mass shootings - Newtown, Massachusetts; Christopher Dorner in Los Angeles; Aurora, Colorado - the country, lawyers included, has attempted to become more perceptive and aware of behavior that raises a red flag. Many of the episodes in the headlines involve troubled people who opened fire on a crowd or shot indiscriminately at individuals who were confined in an office, movie theater, or school. Sometimes the bullets fly just hours after the shooter has acquired the weapon or the ammunition.
The message is clear. Time matters.
Make no mistake: Practicing law is sometimes a dangerous job. A well-cited American Bar Association survey in the mid-1990s revealed that 60 percent of family lawyers had been threatened by opposing parties, and 17 percent have been threatened by their own clients. (See "Lawyers in Harm's Way," ABA JOURNAL, March 1998 at p. 93.)
Although much of the focus is rightfully on preventing violence in the first place, lawyers face an added issue: What is the right ethical path to follow when an attorney fears he or she is representing a dangerous client? The hypothetical scenario presented above calls into play the California ethics rules and code sections that may apply.
Although client confidentiality is one of the hallmarks of an attorney-client relationship, in California there are circumstances under which a lawyer has the option to reveal confidential client information.
As the statutes make clear, no attorney-client privilege exists if a lawyer was sought or retained to facilitate the commission or planning of a crime or fraud. (See Cal. Evid. Code § 956.) For this exception to apply, two elements must be shown. First, the party opposing the privilege must establish a prima facie case of a crime or fraud; and second, a "reasonable relationship" must exist "between the crime or fraud and the attorney-client communication."
Regarding the prima facie showing of fraud, four elements are required to establish the exception: a misrepresentation of material fact; knowledge of the representation's falsity; intent to deceive; and justifiable reliance. (In re 3DFX Interactive, Inc. v. nVidia Corp., 347 B.R. 386, 392 (Bankr. N.D. Cal. 2006) (citing BP Alaska Exploration, Inc. v. Superior Court, 199 Cal. App. 3d 1240, 1263 (1988).)
In California, the crime-fraud exception extends only to communications "reasonably related" to the crime or fraud, and it does not effect a complete waiver of the attorney-client privilege. (In Re 3DFX Interactive, 347 B.R. at 392-393.) It should be noted that the crime-fraud exception contained in Evidence Code section 956 applies only to the attorney-client privilege; it does not apply to information protected by the work product privilege. (State Farm Fire and Cas. Co. v. Superior Court, 54 Cal. App. 4th 625, 650 (1997); and BP Alaska, 199 Cal. App. 3d at 1250-51.)
The code also states that there is no privilege if the lawyer reasonably believes that disclosure "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." (Cal. Evid. Code § 956.5.)
Business and Professional Code
The conduct of California lawyers is also governed by the Business and Professions Code, which enumerates the duties of an attorney. One oft-cited provision articulates that a lawyer must "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." (Cal. Bus. & Prof. Code § 6068(e)(1).) Notwithstanding that proviso, 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. (Cal. Bus. & Prof. Code § 6068(e)(2).)
Rules of Professional Conduct
In addition to the statutes discussed above, attorneys are ethically bound by California's Rules of Professional Conduct (RPC). Rule 3-100 states that a lawyer (referred to in the rule as a "member" of the State Bar) shall not reveal information protected from disclosure by Business and Professions Code section 6068 without the informed consent of the client. (See Cal. RPC 3-100(A).) But this general rule also is subject to a major exception, because RPC 3-100(B) provides that 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." (Cal. RPC 3-100(B).)
As is readily apparent, these various statutes and rules parallel one another. However, the Rules of Professional Conduct and the commentary that accompanies them provide further guidance on these difficult issues. In fact, the rules enumerate options to be considered before a lawyer lifts the shroud of client confidentiality. They contemplate that prior to revealing confidential information to prevent a criminal act, a member shall, if reasonable under the circumstances:
l make a good faith effort to persuade the client not to commit or continue the criminal act; and
l persuade the client to pursue a course of conduct that will prevent the threatened death or substantial bodily harm.
In addition, the client must be informed at "an appropriate time" of the lawyer's ability or decision to reveal confidential information. (See Cal. RPC 3-100(C).)
The rules also deal with the extent of the disclosure. Rule 3-100(D) states that when revealing information, "the member's disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure." Moreover, the rules provide that an attorney commits no violation if he or she decides not to reveal information that would have been permitted under rule 3-100(B). (See Cal. RPC 3-100(D) & (E).)
The rules contain a helpful "discussion" portion that illuminates these principles. This section points out that a lawyer's duty of confidentiality is broader than the often-cited work product and attorney-client privileges. (See Cal. RPC 3-100, discussion .) It goes on to mention the express exception in Evidence Code Section 956.5 (cited above) but distinguishes the situation of future criminality from past crimes with a reminder that section 956.5 does not permit a member to reveal confidential information relating to a client's past-completed criminal acts. (See Cal. RPC 3-100, discussion .)
Factors to Weigh
Perhaps most important, the rule 3-100 discussion contains a list of factors to be considered in deciding whether to reveal confidential information. These include:
- any time constraints under which the lawyer must make a decision regarding what, if anything, to disclose;
- whether the client has made such threats before, and if he or she ever acted upon them;
- whether the lawyer thinks his or her attempts to dissuade the client to abort the criminal plan have been successful;
- the impact of disclosure upon the client's rights under the 5th, 6th, and 14th amendments of the U.S. Constitution and under Article 1 of the California Constitution;
- other adverse effects to the client that may result from disclosure; and
- the extent of the information that must be revealed in order to prevent the client's criminal act or threatened harm.
A lawyer may also take into consideration whether the prospective harm is imminent - although this factor is not a prerequisite to disclosure. (See Cal. RPC 3-100, discussion .)
And it is important to remember that disclosure is not confined to cases in which the client is the potential criminal actor; rule 3-100, which authorizes disclosure, does not specify that the client must be the individual planning the criminal act.
If a lawyer engages in the predisclosure conduct described in rule 3-100(C) and the client ceases the criminal plan or takes corrective action before any harm is caused, the lawyer no longer has the option of disclosing the confidential information because the threat posed by the client has ceased to exist. (Cal. RPC 3-100, discussion .)
Any disclosure made under these rules must be no broader than necessary to prevent the criminal act. Furthermore, the disclosure should be made only to "those persons who the member reasonably believes can act to prevent the harm." Examples listed include an anonymous disclosure to the intended victim or to law enforcement. Circumstances that may dictate the appropriate form of disclosure include time constraints, whether the victim is aware of the threat, the lawyer's familiarity with the client, and anticipated prejudice to the client that may result from disclosure. (See RPC 3-100, discussion  & .)
Telling the Client
One of the most delicate issues involves advising the client that a disclosure will be made. The rules recognize that in some circumstances a revelation could increase the risk of harm not only to the intended victim, but also to the client and his or her family, as well as to the lawyer and his or her family or associates. Thus, the discussion under rule 3-100 cautions that informing the client of a disclosure is required only if reasonable under the circumstances.
Regarding the timing of informing the client, the listed factors to consider are whether the client is an "experienced user of legal services," the frequency of the lawyer-client contact, the nature and length of time of the lawyer-client professional relationship, whether the lawyer has discussed the duty of confidentiality (or any exceptions) with the client, the likelihood that the client's case will involve the disclosed information, the lawyer's belief "that so informing the client is likely to increase the likelihood that a criminal act likely to result in the death of, or substantial bodily harm to, an individual," and finally, the lawyer's belief that "good faith efforts to persuade a client not to act on a threat have failed." (Cal. RPC 3-100, discussion .)
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." (Cal. RPC 3-100, discussion .)
Is Withdrawal Required?
The rules indicate that an attorney may not request permission to withdraw from representation unless the client "seeks to pursue an illegal course of conduct" or "insists that the member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act." (See Cal. RPC 3-700(C)(b) and (c).)
So what's a lawyer to do? The answer may depend on how the attorney interprets the client's language. The hypothetical situation at the beginning of this article was ambiguous. But this is realistic, because in many cases a client's language will not clearly establish a threat of any kind. Your client may not tell you outright that he or she intends to shoot the opposition's star witness; the client may simply state that you need not waste your time preparing for cross-examination. Given complexities and nuances such as these, several things must factor into the analysis of a threat. For example, in a domestic relations dispute, a given statement may carry one meaning; but in a gang case, the same words may well mean something entirely different.
The key is to take statements seriously, analyze them carefully, and draw on reason and experience in deciding on a course of action. And remember: Many local bar associations offer ethics hotlines to provide help in these touchy situations, as does the State Bar (see below).
Let's return to our opening hypothetical. What if, in the end, you truly believe that your client bought the gun in order to commit suicide? This is a difficult call: Although the result of the client's act is "likely to result in death of, or substantial bodily harm to, an individual," the attorney would not be able to disclose the information because, in and of itself, suicide is not a "criminal act" in any state. (In re Joseph G., 34 Cal. 3d 429, 433 (1983); and Donaldson v. Lungren, 2 Cal. App. 4th 1614, 1624 (1992).) Note, however, that deliberately aiding or encouraging another person to commit suicide is a crime in California. (See Cal. Penal Code § 401; and In re Ryan N., 92 Cal. App. 4th 1359 (2003).)
Much of this discussion may be dry and technical, but the underlying problem is frighteningly real. Only this year, the same day that a disgruntled pro se litigant in Phoenix opened fire after mediation and shot the opposing lawyer and two other people, former U.S. Representative Gabrielle Giffords was scheduled to testify before Congress on the subject of gun control.
If you practice law long enough, you may at some point be faced with representing a dangerous client. A working knowledge of the foregoing rules is essential for you to weigh your options and make the right ethical decision.
Wendy L. Patrick, a deputy district attorney in San Diego County, also serves as advisor to the State Bar Committee on Professional Responsibility and Conduct.
Need Help with an Ethics Issue?
Attorneys can call the California State Bar Ethics Hotline from 9 a.m. to 5 p.m. weekdays at 800/238-4427 (800-2-ETHICS) within California, or 415/538-2150 from out of state.