Washington State Judicial Decisions on Lawyers Warning of Client Dangerousness

        In Hawkins v. King County, 24 Wn. App. 338, 602 P.2d 361 (1979), the court of appeals held that a lawyer had no duty to disclose in a bail hearing the information he possessed of a client's psychotic dangerousness when seeking the client's release from incarceration on his personal recognizance. Shortly after release, the lawyer's mentally ill client attacked and repeatedly stabbed his own mother and then attempted suicide, causing the amputation of both legs. The appellate court exonerated the enabling lawyer, stating:

        Turning then to the Hawkinses' theory of a common-law duty to warn or disclose, we note common-law support for the precept that attorneys must, upon learning that a client plans an assault or other violent crime, warn foreseeable victims. See Tarasoff v. Regents of Univ. of Cal., supra; State ex rel. Sowers v. Olwell, 64 Wn.2d 828, 394 P.2d 681, 16 A.L.R.3d 1021 (1964); Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490 (1968). Olwell and Dike make clear our Supreme Court's willingness to limit the attorney's duty of confidentiality when the values protected by that duty are outweighed by other interests necessary to the administration of justice. The difficulty lies in framing a rule that will balance properly "the public interest and safety from violent attack" against the public interest in securing proper resolution of legal disputes without compromising a defendant's right to a loyal and zealous defense. We are persuaded by the position advanced by amicus [U. of Washington Law Professor Robert Aronson] "that the obligation to warn, when confidentiality would be compromised to the client's detriment, must be permissive at most, unless it appears beyond a reasonable doubt that the client has formed a firm intention to inflict serious personal injuries on an unknowing third person."
        Because appellants rely to a great extent upon Tarasoff in arguing a common-law duty to disclose, we will demonstrate that the Tarasoff decision is inapposite even though the facts are equally atypical and tragic. Tatiana Tarasoff was killed by one Prosenjit Poddar. The victim's parents alleged that 2 months earlier Poddar confided his intention to kill Tatiana to a defendant, Dr. Moore, a psychologist employed by the University of California. After a brief detention of Poddar by the police at Moore's request, Poddar was released pursuant to order of Dr. Moore's superior. No one warned Tatiana of her peril. The plaintiffs claimed the defendant psychologists had a duty to warn foreseeable victims. Defendants denied owing any duty of reasonable care to Tatiana. The trial court sustained a demurrer to the complaint which was reversed on appeal. The Supreme Court of California concluded that the complaint could be amended to state a cause of action against the psychologists by asserting that they had or should have determined Poddar presented a serious danger to Tatiana, pursuant to the standards of their profession, but had failed to exercise reasonable care for her safety.
        ....
          In the instant case, Michael Hawkins' potential victims, his mother and sister, knew he might be dangerous and that he had been released from confinement, contrary to Tatiana Tarasoff's ignorance of any risk of harm. Thus, no duty befell [then lawyer, now state supreme court justice, Richard B.] Sanders to warn Frances Hawkins of a risk of which she was already fully cognizant.
[Webmaster's comment: The Court of Appeals' identification of his mother and sister as his only "potential victims" misstated the actual facts of the case, namely, that "Michael Hawkins was arrested after assaulting a young girl on the University of Washington campus, under the delusion that she was an old girlfriend." Obviously, his "potential victims" included far more unsuspecting people than simply his innocent mother (who he repeatedly stabbed) and his sister. His suicidal leap was from the 45th Street Bridge, which is adjacent to the UW campus, so it appears that he frequented the UW campus and its surroundings. Pages 3-6 of Hawkins' Brief, linked below.  On the all-too-common practice of judges misstating the facts so as to justify their pre-determined conclusions, see Anthony D'Amato, The Ultimate Injustice: When a Court Misstates the Facts[PDF], 11 Cardozo L. Rev. 1313 (1990) (Professor D'Amato says, at pg.1345, "even demonstrably false things can be stated as factually accurate in a judicial opinion because the reader typically would not question the accuracy of what a judge reports as the facts.")]  To read the full briefs from the Hawkins case, click on these links Hawkins, Sanders, Amicus (Aronson), and  Hawkins' Reply to Amicus.

         In State v. Hansen, 122 Wn.2d 712, 720-21, 862 P.2d 117 (1993), our state supreme court held that lawyers have a duty to warn judges of any threats of harm (but apparently they have no duty to warn less favored folks), saying:

        "The attorney-client privilege is not applicable to a client's remarks concerning the furtherance of a crime, fraud, or to conversations regarding the contemplation of a future crime. [citing earlier cases.] Hansen's statement that he was going to blow away the judge, prosecutor and public defender falls under this exception to the attorney-client privilege.
        ....
        To decide this case, we must determine whether an attorney has an affirmative duty to warn judges of true threats made by his or her client or by third parties. Whether a threat is a true or real threat is based on whether the attorney has a reasonable belief that the threat is real. We hold that attorneys, as officers of the court, have a duty to warn of true threats to harm members of the judiciary communicated to them by clients or by third parties."
         In Discipline of Sanders, 135 Wn.2d 175, 955 P.2d 369 (1998), our state supreme court held that newly elected Justice Richard B. Sanders was exercising his protected First Amendment rights when, immediately following his formal induction into the Washington State Supreme Court in January of 1996, he addressed a March for Life rally, saying:
"Nothing is, nor should be, more fundamental in our legal system than the preservation and protection of innocent human life."
[Doug Schafer's comment: Justice Richard B. Sanders' 1996 declaration of the primacy of protecting innocent human life stands in stark contrast to lawyer Richard B. Sanders' 1975 loyal nondisclosure of his client Michael Hawkins' psychotic dangerousness at his bail hearing. In Sanders' 1977 defense of the claims brought against him, he argued that his ethical duty of confidentiality barred him from disclosing his client's psychotic dangerousness that threatened innocent human life.]

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