Ethics Opinions

Opinion No. 01-2

Summary: A lawyer may notify family members, adult protective agencies, the police, or the client's doctors to prevent the threatened suicide of a client if the lawyer reasonably believes that the suicide threat is real and that the client is suffering from some mental disorder or disability that prevents him from making a rational decision about whether to continue living.

Facts: In the course of a discussion about his affairs, a client informs a lawyer that he has decided to commit suicide. So far as the lawyer knows, the decision is not precipitated by terminal illness or any particular disease. The client seems overwhelmed by his life's problems. The lawyer is reasonably certain that the client is serious about his suicide threat. The lawyer inquires whether she may reveal that information to others in a position to prevent the client from carrying out the threat.
Discussion: The Massachusetts Rules of Professional Conduct state the general rules and exceptions relating to the principles of confidentiality in Rule 1.6 as follows:

(a) A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are implicitly authorized in order to carry out the representation, and except as stated in paragraph (b).
(b) A lawyer may reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information:
(1) to prevent the commission of 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, or to prevent the wrongful execution or incarceration of another;
(2) to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(3) to the extent the lawyer reasonably believes necessary to rectify client fraud in which the lawyer's services have been used, subject to Rule 3.3 (e);
(4) when permitted under these rules or required by law or court order.

Comment 5 to Rule 1.6 states that “The confidentiality rule applies not merely to matters communicated in confidence by the client but also to virtually all information relating to the representation, whatever its source.” On the facts given to the Committee, the information communicated to the lawyer by the client is covered by the general confidentiality rule set forth in Rule 1.6. Since suicide and attempted suicide are not crimes, the specific exceptions contained in Rule 1.6(b)(1), (2), and (3) do not cover the factual situation presented. Rule 1.6(b)(4), as quoted above, does permit or require revelation “when permitted under these rules or required by law or court order.”
In our view, the lawyer in this present inquiry needs to address the problem of the mental capacity of the client who is threatening to commit suicide. Rule 1.14 of the Rules of Professional Conduct provides:
(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) If a lawyer reasonably believes that a client has become incompetent or that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, and if the lawyer reasonably believes that the client is at risk of substantial harm, physical, mental, financial, or otherwise, the lawyer may take the following action. The lawyer may consult family members, adult protective agencies, or other individuals or entities that have authority to protect the client, and, if it reasonably appears necessary, the lawyer may seek the appointment of a guardian ad litem, conservator, or a guardian, as the case may be. The lawyer may consult only those individuals or entities reasonably necessary to protect the client's interests and may not consult any individual or entity that the lawyer believes, after reasonable inquiry, will act in a fashion adverse to the interests of the client. In taking any of these actions the lawyer may disclose confidential information of the client only to the extent necessary to protect the client's interests.

Under Rule 1.14(b) the critical question is whether the lawyer “reasonably believes” that her client “has become incompetent” to make the contemplated decision and whether she “reasonably believes that the client is at risk of substantial harm.” As Comment 2 to Rule 1.14 states, “If the person has no guardian or legal representative, the lawyer must often act as de facto guardian.” And the last sentence of Rule 1.14(b) specifically authorizes disclosure of confidential information to protect the client's interests.
The threat of suicide certainly puts the client “at risk of substantial harm” and any such threat made by an individual very often raises questions about the client's competence. While there may be instances where adequately considered decisions to commit suicide may be made, such as decisions by terminally ill clients under certain circumstances, such a situation is not present on the facts presented in this inquiry. While the lawyer is not required to make a medical decision about capacity, Rule 1.14 allows the lawyer to take steps to preserve the status quo if she has a reasonable belief that the suicide threat is the result of a mental disorder or disability that makes the client incapable of making a rational decision about the important matter of deciding to continue living. See Comment 1 to Rule 1.14. We therefore advise that on the facts as presented to us, the inquiring lawyer may take such action as notifying family members, adult protective agencies, the police, or the client's doctors in order to prevent the threatened suicide if she concludes that she has a rational basis to believe that the suicide threat is real and that the client appears to be suffering from some mental disorder or disability that prevents him from making a rational decision about whether to continue living. The decision about the appropriate person to notify should be based on a decision about the help likely to be obtained in preventing the threatened suicide.
This advice is that of a committee without official governmental status.
In our earlier Opinion 79-6, we advised that an attorney was permitted to reveal to medical or civil authorities information calculated to prevent an individual from harming himself when the attorney reasonably believed an individual was contemplating imminent suicide. We gave that advice based on substantive law that while “neither suicide nor attempted suicide is itself punishable under the criminal law of Massachusetts,” “both have in other respects been deemed to be malum in se and treated as unlawful and criminal. See, e.g., Hughes v. New England Publishing Co., 312 Mass. 178 (1942); Commonwealth v. Mink, 123 Mass. 422 (1877).” In the present Opinion we have preferred to base our approach on Rule 1.14, which seems more in point with respect to the inquiry put to us.
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