Client Threat of Suicide Ethical Response Actions

By Stark Ligon, Ethics Counsel, Arkansas Supreme Court Help Line 501-683-4014, ethicscounsel@arcourts.gov

At least six times since the Office of Ethics Counsel (“the Office”) opened in October 2021, the question is, “What can I ethically do when my client has made what I consider to be a credible threat to commit suicide?” Arkansas Rules of Professional Conduct (“ARPC”) 1.6 (confidentiality) and 1.14 (client with diminished capacity) and numerous ethics opinions address the issue and the lawyer’s ethicallypermissible responses. The short answer is “DISCLOSE,” and hopefully save at least one life if the client is serious and appears to have the means and opportunity to carry out the threat. This article will address how one gets to this conclusion. Also, please remember the supportive statement in Section 14 of the Scope of the ARPC, “The Rules of Professional Conduct are rules of reason.”

ARPC 1.6 requires the client’s lawyer to keep confidential and not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by exceptions in 1.6(b). Comment 6 states, in part, that the overriding value of life and physical integrity permits disclosure reasonably necessary to prevent death or bodily harm. Client threats of suicide, to injure or kill another person in the process of the client committing suicide, encouraging the suicide of another person, and assisting in suicide are questions of “law” and generally outside the scope of the authority of the Office to opine on under OEC Rule 6.A. For information, see Ark. Code Ann. §§ 5-10-107, 5-10-104(a) (2), and 5-2-605(4). OEC has not found an Arkansas Code provision that now makes the threat or act of suicide to be criminal conduct. ABA Informal Opinion 83-1500 (1983) addresses the need for client permission to disclose the client’s intention to commit a crime and the information necessary to prevent the crime where neither suicide nor attempted suicide is a crime in the jurisdiction. The Opinion cited several state ethics opinions and concluded that the proper conduct for a lawyer dealing with a client with a disability, now a “client with diminished capacity” under thenproposed Model Rule (MR) 1.14 and now ARPC 1.14, is to safeguard and advance the interests of his or her client as a last resort when the lawyer’s efforts to counsel the client have apparently failed. ABA Informal Op. 89-1530 (1989) approves disclosure by the lawyer of a disabled client’s condition to the client’s physician, citing also to MR 1.14. ABA Inf. Op. 89-1530 points out that if the disclosures necessary and implied as part of the representation under MR 1.14 were prohibited under MR 1.6 then MR 1.14 could not work effectively and the two Model Rules would be internally inconsistent.

Later pre-Model-Rules Virginia Legal Ethics Op. 560 (1984) interprets the former Disciplinary Code DR 4-101(C)(3), now basically Model Rule 1.6(b)(1), and several ABA Informal Opinions in just one short sentence stating, “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.” Other state ethics opinions permitting limited disclosure in client suicide threat situations are New York State Bar Ethics Op. 486 (1978), Georgia Ethics Op. 42 (1984), Penn. Ethics Op. 93-43, Alaska Ethics Op. 2005-1, Mass. Bar Op. 01-2 (2001), South Carolina Ethics Op. 99-12, Alabama Ethics Op. RO-95-06, and Arizona Ethics Op. 91-18.

ARPC 1.14(b) allows the lawyer to “take reasonably necessary protective action” with a client with diminished capacity who is at risk of substantial physical harm, including notifying and disclosing necessary client information to family members [Comment

2], other legal representatives of the client [Comment 4], professional services and adult protective agencies [Comment 5], consulting with an appropriate diagnostician [Comment 6], and taking emergency legal assistance action where a threat to the health or safety of the client is imminent and irreparable [Comments 9-10]. Such action reasonably includes contacting law enforcement if the lawyer determines such action is reasonably necessary and believes the client is armed and/or represents credible threat of serious physical harm to others.

John W. Hall, Jr.’s “Observation” in Section 28:26 of his Professional Responsibility in Criminal Defense Practice (4th ed. 2023, Thomson-West at 1122) states the dilemma and the lawyer’s resolution of it in crystal clear terms, “For those of us who have litigated cases where the defendant attempted suicide, we are well aware of the concept of the “cry for help” when somebody calls about a planned suicide. If somebody calls their lawyer and says they plan to commit suicide and they sound serious, a court would certainly be justified in holding that the call was a “cry for help” and constituted an implied waiver of confidentiality. Also, any lawyer who received such a call for help and did nothing would likely never forgive him- or herself if the client committed suicide.” Arkansas lawyers, you may ethically “disclose” to the extent you believe reasonably necessary under the circumstances to prevent a client from attempting or committing suicide. Consider erring on the side of caution. The public and the profession will understand.■

Stark Ligon, Arkansas Supreme Court Office of Ethics Counsel

By Steve Davis