[Return to .EvergreenEthics.com/E2K/]Permit Lawyers to Prevent "Likely" Serious Harm, not just if "Reasonably Certain"
Views of Doug Schafer, a concerned lawyer.
I urge the proponents of restoring the "prevent serious harm" exception to Model Rule 1.6, such as proposed by the
ABA Ethics 2000 Committee, to restore the probability-of-harm modifier of "likely" or "reasonably likely" in place of the modifier "reasonably certain." The Ethics 2000 proposal for 1.6(b) reads:(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:The probability-of-harm modifier simply should be deleted from (b)(1), so it then would read, "to the extent the lawyer reasonably believes necessary (1) to prevent death or substantial bodily harm." The probability-of-harm test then would be inherent in the "reasonably believes necessary" test.
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;Recognize that since 1983, ABA Rule 1.6 (b)(1) only has permitted a lawyer to prevent an "imminent" death or serious injury, the word "imminent" being a timing modifier. One can only speculate why a few E2K members sought replaced a timing modifier with a probability modifier.
The ABA Kutak Commission's final 1982 proposal for 1.6(b) read as follows:
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:Forty-one states are reported as having retained, in their post-1983 adoption of the Model Rules, a "prevent crime" exception in Rule 1.6. Most appear to have retained language of the Model Code, such as did Washington state in 1985:
(2) to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another;
(3) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used;(b) A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a crime;Many states use the modifier "likely" as the Kutak Commission did, such as Maryland:(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:Only Tennessee appears to use the "reasonably certain" modifier, and it does so as a trigger for mandatory disclosure of client information when necessary to prevent death or serious injury:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another;(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary: (1) to prevent reasonably certain death or substantial bodily harm;For a compilation of similar provisions of the 24 "rectify fraud/crime" states, click here.Moral and compassionate lawyers who form a reasonable belief, from confidential client information, that a wrongful death or substantial injury or substantial ecomonic harm is likely to occur without their disclosures should not have to second-guess--with their professional lives at stake--whether an over-zealous bar disciplinary lawyer might later argue that the tragedy they prevented was not, in hindsight, "reasonably certain." If a lawyer's courageous warnings fall on "deaf ears" and yet the feared killing or other serious harm fails to actually occur, then the lawyer likely will face professional discipline. Weighing their compassion for innocent likely victims against the personally destructive threat of professional discipline, many or most lawyers will, as they have been doing for years, passively enable (by their silence) the killing, serious injury, and financial devastation of their client's innocent victims.
Just what does "reasonably certain" mean? The word "certain" means that an event absolutely will occur. A future event is either certain to occur or it is not certain to occur, and future human conduct in inherently uncertain. Lawyers probably will equate the phrase "reasonably certain" with "beyond a reasonable doubt." If a sexual predator abducts a child, is it "certain" that the child will suffer death or substantial bodily harm? If a con-artist borrows large sums from vulnerable elderly persons, is it "certain" that that any particular elder will suffer substantial financial harm? If a criminal gang member defendant tells his lawyer that he will "whack" the prosecution's lead witness or the judge, is that killing "certain" to occur? An honest response to each of these questions would be "no," but in each case reasonable persons would consider such harm to be "likely."
The American Law Institute's Restatement Third, Law Governing Lawyers §66 oddly applies the probability modifier "reasonably certain" to the future events of "death or serious bodily harm" in permitting lawyer disclosures of client information, but §67 applies no probability modifier (except as inherent in "reasonably necessary") to the events of future "crime or fraud" that "threatens substantial financial loss." But the §66 official Comments and Illustrations make it clear that "reasonably certain" is intended to be interpreted as nothing more that "likely." One illustration is of a car crash victim's latent life-threatening aortal aneurism (from the famous Spaulding v. Zimmerman case), another illustration is of the evicted apartment house maintenance man confiding to his tenant-rights lawyer his plan to commit arson (from the 1997 Massachusetts case of Purcell v. District Attorney). For the Restatement's §66-67 black-letter rules, click here.
The minutes of the Ethics 2000 meetings reflect its members' concerns about wordsmithing the public-interest confidentiality exceptions in light of the "political realities" that their proposal would face opposition from those ABA convention delegates and Bar leaders who had rejected public-interest exceptions to confidentiality on several prior occasions. The Commission's insertion of "reasonably certain" in place of "imminent" appears to be a reluctant concession to those political realities. Those political realities later were illustrated by the 2001 rejection by the ABA's 2001 House of Delegates of the public-interest confidentiality exceptions though they adopted those exceptions in 2003 under threat of federal agency intervention. (Click here for those Ethics 2000 meeting minutes. Click here for telling quotations illustrating the bar-politics opposition stemming from self-serving fears of lawyer liability for failing to prevent serious harms.)
And in a later meeting, the substitution in (b)(2) and (b)(3) of "reasonably certain" for "likely" was a coup by a 5 to 4 vote based on the argument for parallelism between the modifiers in (b)(1), (2), and (3). (Click here for those minutes.) Given that states adopting the Ethics 2000 public-interest exceptions to confidentiality will be doing so in spite of their rejection by the ABA's de facto or de jure leaders and governing body, I submit that the wording best serving the public interest ("likely") should be restored in place of wording ("reasonably certain") that was a concession to garner support from the amoral "lawyers-as-hired-guns" faction of the Bar. Click here for the Ethics 2000 Commission's 1998 and 1999 drafts of Model Rule 1.6 that both used the modifier "likely" in (b)(2).
Ask yourself this: If your loved ones were likely to be killed or seriously harmed, would you want a lawyer, who could prevent that harm, refusing to do so out of fear that a second-guessing zealous disciplinary counsel might later assert that the probability of harm was not "reasonably certain"? No normal, compassionate human being would want their loved ones sacrificed on the Bar's altar. Yet current Bar ethics rules force moral and compassionate lawyers to choose between sacrificing innocent victims or their professional lives on the Bar's altar.
Recently the Washington State Supreme Court faced the close-to-home question of when do lawyers have an affirmative duty, as officers of the court, to warn judges of threats of harm by clients or by third parties. The court did not apply a "reasonably certain" probability test, nor even a "likely" probability test. Instead, high court jurists applied perhaps the lowest test of probability-- is the threat reasonably credible?--declaring emphatically, "We conclude that attorneys, as officers of the court, have a duty to warn of true threats to harm a judge made by a client or a third party when the attorney has a reasonable belief that such threats are real." State v. Hansen, 122 Wn.2d 712, 721, 862 P.2d 117 (1993). Can any member of the judiciary or bar shamelessly assert that innocent members of the general public are entitled to lesser protection from threatened death or harm than are judges and other officers of the court?