hypotheticals- memo

MEMORANDUM OF FILE

FROM: SANDRA KALKYTE

TO: PROFESSOR EDWARD LAI

DATE: OCTOBER 11, 2016

A.

ISSUE:

Does the legal professional need to disclose that the defendant has confessed to him, and given a

crime weapon?

ANALYSIS:

Confidentiality, embodied by the attorney-client relationship, is a bedrock principle of our legal

system. It contributes to the trust that is the hallmark of the client-lawyer relationship. Pursuant

to comment [1] to R.P.C. 1.6, a client is encouraged to seek legal assistance and to communicate

fully and frankly with the lawyer even as to embarrassing or legally damaging subject

matter. However, these confidences can create problems for lawyers. A case in point is where a

criminal defendant client tells his lawyer that he intends to lie on the witness stand. The lawyer is

torn between his duty of confidentiality under R.P.C. 1.6 and his duty of candor towards a

tribunal pursuant to R.P.C. 3.3. Pursuant to the requirements of R.P.C. 3.3, a lawyer may have to

take action adverse to his client. This is contrary to the comfortable model of the adversarial

system and creates a dilemma for which there are no clear answers.

The matter in question, however, includes not only a lawyer’s ethical obligations to the court and

his client, but also a criminal defendant’s Constitutional Rights. The right of the criminal

defendant to be represented by counsel is guaranteed by the Sixth Amendment to the U.S.

Extra Credit Assignment Sandra Kalkyte MEMO 1

Constitution. A criminal defendant also enjoys the right to testify. The Constitutional sources for

the criminal defendant’s right to testify were announced by the United States Supreme Court

in Rock v. Arkansas (1987) 483 U.S. 44. In Rock v. Arkansas, the Supreme Court held that the

right to testify was protected by the Fifth, Sixth and Fourteenth Amendments. In discussing the

Compulsory Process Clause which grants the defendant the right to call witnesses in his favor,

the Court stated as follows: “In fact, the most important witness for the defense in many criminal

cases is the defendant himself. There is no justification for a rule that denies an accused the

opportunity to offer his own testimony.” Many courts have recognized the interaction between

these two constitutional rights. “The right to be heard would be, in many cases, of little avail if it

did not comprehend the right to be heard by counsel.” As such, a criminal defendant has the right

to testify and the right to zealous representation by a lawyer. In United States v. Scott (1990) 909

F.2d 488, the 11th Circuit Court of Appeals held that it was impermissible to force a defendant to

choose between these two constitutional rights. The Scott Court reversed a trial court decision

which gave a defendant a choice of either proceeding pro se or proceeding through counsel who

could prevent Scott from testifying. In Scott the defendant’s lawyer informed the court that she

had an ethical obligation to the court to withdraw from the case.

R.P.C. 3.3 states as follows:

(a) A lawyer shall not knowingly:

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness

called by the lawyer offered material evidence and the lawyer comes to know of its falsity, the

lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the


tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a

criminal matter, that the lawyer reasonably believes is false.

If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false

evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If

the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must

refuse to offer the false testimony. If only a portion of a witness’s testimony will be false, the

lawyer may call the witness to testify but may not elicit or otherwise permit the witness to

present the testimony that the lawyer knows is false.

It is clear that a lawyer may seek to withdraw from the representation. This is a good solution for

the lawyer if the issue arises far enough in advance, and the lawyer can withdraw without

alerting the court to the issue and so preserve the client’s confidence. Often this dilemma does

not arise until the eve of trial, or worse, in the middle of trial. At that point, the Court may not

permit the lawyer to withdraw. Moreover, it may be impossible to withdraw in a manner that

does not breach the confidence. What is the lawyer to do? There are a number of different

approaches to this problem:

A. The “Full Advocacy Approach”

The “full advocacy approach,” is promoted primarily by Professor Munroe Freedman. Under this

approach, a lawyer, to protect client confidences, may knowingly present perjured testimony, if

the lawyer cannot dissuade his client from committing perjury. (Freedman, Professional

Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions (1996) 64 Mich.

L. Rev 1469.) Freedman rejects the idea of withdrawing in the midst of trial because this is


tantamount to blowing the whistle on the client. The full advocacy approach comes down on the

side of confidentiality. Ergo, the only reason that the lawyer believes that the client is going to

lie as because of a confidential attorney-client communication. It also recognizes the loss of trust

and the corresponding impact of the disclosure on the attorney-client relationship. Instead of

vigorous advocacy, the client perceives that their lawyer has switched sides and is playing for the

prosecution.

B. The Narrative Approach

The Defendant takes the stand and delivers his statement in narrative form. The defense attorney

does not elicit the perjurious testimony by questioning and cannot argue the false testimony in

closing argument. Under this procedure the defendant is afforded both his right to speak to the

jury under oath and his constitutional right to assistance of counsel. In addition, the defense

attorney did not elicit false testimony.

This approach was followed by the Florida Supreme Court in The Florida Bar v. Rubin

(1989) 549 So. 2d 1000. The Rubin case offers a cautionary tale that illustrates the predicament

that befalls a lawyer when he believes his client is going to lie on the stand. Ellis Rubin was

representing Russell Sanborn on a charge of first-degree murder. Prior to jury selection, Rubin

asked the court for permission to withdraw without providing specific reasons. The Florida

Supreme Court interpreted this conduct as Rubin informing the court that his client was planning

to testify untruthfully. The court denied Rubin’s motion to withdraw and ordered him to proceed

to trial. Rubin sought certiorari, which was denied. When the case returned to the trial court,

Rubin refused to proceed to trial. He believed that he was bound by the ethical rules and could

not participate in presenting false evidence to the court. Rubin was held in contempt and served


thirty days in jail and was later publicly reprimanded through a disciplinary proceeding.

The Rubin Court held that the lawyer must obey the orders of the court, even when it believes

them to be incorrect. The Rubin Court approved the narrative approach as a way to balance the

rights of the defendant and the ethical concerns of the lawyer.

The 11th Circuit Court of Appeals took this a step further in United States v. Long (1988) 857

F.2d 436. In Long, the lawyer disclosed to the court the possibility that his client would commit

perjury. The Long Court held that the trial court should conduct an evidentiary hearing to

determine whether counsel had a firm basis for his belief and to determine whether the defendant

understood his rights, the consequences of his actions and any waivers of those rights.

There are obvious problems with the narrative approach. As an initial matter, it is premised on

the disclosure of the confidence - with the lawyer as whistleblower. It is hard to imagine how an

evidentiary hearing regarding the basis for the lawyer’s belief, would be anything but a full-scale

invasion of the confidential communication. With the breach of the privilege, would come the

corresponding loss of trust between the attorney and the client. Moreover, this untenable

situation would exist where the lawyer would not be allowed to withdraw. The lawyer’s reward

for this would likely be a claim of ineffective assistance of counsel by the client. The Supreme

Court held in Nix v. Whiteside, that the Sixth Amendment right of a criminal defendant to

assistance of counsel is not violated when the attorney refuses to cooperate with the defendant is

presenting perjured testimony. However, based on the strained relationship between the lawyer

and the client, there would be a litany of additional complaints. The most obvious problem with

the narrative approach is the result of the case. It is hard to believe that after being telegraphed

the lawyer’s suspicions of perjury, the trier of fact would rule in favor of the criminal defendant -


even if the defendant ultimately testified truthfully. As such, this balancing approach seems to

pay lip service to the protection of the defendant’s rights while ignoring the obvious result.

C. The “Knowledge” Based Approach

In drafting Rule 3.3 of the Model Rules of Professional Responsibility, the American Bar

Association (“ABA”) agreed with the critics and rejected the narrative approach. The ABA also

rejected the “full advocacy” approach. ABA Model Rule 3.3 requires a lawyer to reveal the

perjury, if necessary to rectify the situation. The Illinois Rules of Professional Conduct are based

on the ABA Model Rules. The comments to R.P.C. 3.3 provide the following guidance:

The prohibition against offering false evidence only applies if the lawyer knows that the

evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its

presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be

inferred from the circumstances. Thus, although a lawyer should resolve doubts about the

veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an

obvious falsehood.

Because of the special protections historically provided criminal defendants, however, this rule

does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer

reasonably believes, but does not know that the testimony will be false.

The key to this approach is knowledge. Pursuant to this approach, how does the lawyer “know”

what is the truth and what is the lie? Moreover, just because the lawyer thinks the client will lie,

does not mean they will. This philosophical exercise in epistemology seems a little disingenuous.

To avoid the invasion of the privilege and the defendant’s Constitutional Rights, it seems to

encourage the lawyer to bury his head in the sand. The lawyer must try and persuade the client


not to perjure himself and explain the consequences of the proposed course of conduct to the

client under R.P.C. 1.2(d). Arguably, the lawyer would try and avoid gaining any actual

knowledge during this process. The lawyer would then allow the client to testify because he

would not “know” what the client was going to do. However, if the client did commit perjury,

and the lawyer “knew” the lawyer is required to take remedial measures which may include

disclosure—if necessary.

Can a lawyer represent a person if he knows that person is guilty? Yes. Defense attorneys

are ethically bound to zealously represent all clients, the guilty as well as the innocent.

Another way of looking at this is that the defense lawyer almost never really knows whether the

defendant is guilty of the crime he or she has been charged with. Just because the defendant says

he did it doesn't make it so. The defendant may be lying to take the rap for someone he wants to

protect, or may be guilty, but guilty of a different and lesser crime than the one being

prosecuted by the district attorney. For these reasons, among others, many defense lawyers never

ask their clients if they committed the crime. Instead, the lawyer uses the facts to put on the best

defense possible and leaves the question of guilt to the judge or jury.

If a lawyer knows that a person is guilty, can he argue at trial that the person should be

found not guilty? Yes. The key is the difference between factual guilt (what the defendant

did) and legal guilt (what a prosecutor can prove). A good criminal defense lawyer asks not,

"What did my client do?" but rather, "What can the government prove?" No matter what the

defendant has done, he is not legally guilty until a prosecutor offers enough evidence to

persuade a judge or jury to convict. However, the defense lawyer may not lie to the judge or jury

by specifically stating that the defendant did not do something the lawyer knows the


defendant did do. Rather the lawyer's trial tactics and arguments focus on the government's

failure to prove all the elements of the crime.

Defendant a guilty client may mean committing professional suicide.

Criminal defense attorneys may vigorously defend guilty clients, but by doing so, they risk

committing professional suicide. Way back in 1840, Charles Phillips, one of the finest British

barristers of his era, defended Benjamin Courvoisier against a charge that Courvoisier brutally

murdered his employer. Courvoisier privately confessed to Phillips that he was guilty.

Nevertheless, Phillips's aggressive cross examinations suggested that the police officers were

liars and that other members of Lord Russell's staff might have killed him. Courvoisier was

convicted and executed. But when it became generally known that Phillips had known that his

client was guilty, Phillips became a pariah to the profession and the public.

Moving forward to 2002, San Diego lawyer Steven Feldman got the "Phillips treatment" when

he represented David Westerfield, who was charged with molesting and murdering seven-year-

old Danielle van Dam. Feldman knew privately that Westerfield was guilty. Nevertheless, at

trial Feldman aggressively attacked Danielle's parents. He offered evidence that they

frequently invited strangers into their home for sex orgies, and suggested that one of the

strangers could have been the killer. Westerfield was convicted and sentenced to death. Yet like

Phillips, Feldman was viciously attacked in the media. TV commentators and members of the

public called for his disbarment.

Defense lawyers risk their reputations and perhaps their careers when they go all-out for

obviously guilty clients.


CONCLUSION:

In the United States, all defendants are considered innocent until proven guilty, either through an

admission of guilt by the accused, or a final judgment of a jury or judge. A plea of not guilty

does not mean "I am innocent of all charges;" rather, it means "I do not admit the charges against

me, and demand that the prosecution proves me guilty beyond a reasonable doubt." Therefore,

even in cases where a defendant is obviously guilty or admits his/her guilt to an attorney, there is

nothing wrong with a defendant demanding his/her day in court through a not guilty plea.

Lawyers are officers of the court, and cannot suborn perjury; therefore, if a client tells his/her

attorney "I am guilty of the charges against me," a lawyer cannot ethically argue that the client is

innocent, or allow the client to tell a false story, such that he/she was 10 miles away when the

crimes took place. Therefore, an admission of guilt to an attorney may limit what an attorney

can ethically do at trial as part of a defense. However, such an admission would have no impact

on the defendant's ability to plead not guilty.

To sum up, the confession is TOTALLY meaningless. The statement is protected from attorney-

client privilege. The attorney is LEGALLY and ETHICALLY obligated to provide the client

with the best possible defense. They can't knowingly allow false testimony, but they MUST

present the facts in the light most favorable to the client.

Defense attorneys aren't just there to try prove their clients’ innocence. They're mainly there to

make sure that the client gets a fair trial and doesn't get screwed with a ridiculously harsh

sentence. If you know your client is guilty, you would probably advise them on how to get the

best sentence, rather than trying to prove their innocence.


I think, in the situation in question, the lawyer should advice the defendant to plead guilty. It

would be to risky not to, though it is ultimately the defendant’s decision.

However, a lawyer must always defend his client and may not violate attorney-client privilege. If

the defendant were to receive bad counsel, it would then open up the case for appeal later on.

Even an attorney who wants to see his client jailed should do his best to ensure that an appeal is

not necessary and that the prosecution has to do their due diligence.

B.

ISSUE:

Does the legal professional need to disclose the defendant when there is a life in danger?

FACT:

The defendant has confessed to the legal professional of a kidnapping of a person who has been

duct taped and locked in a place for past two days without water or food.

ANALYSIS:

The Relevant Rules:

A. Business & Professions Code section 6068

Pursuant to Business & Professions Code section 6068, subdivision (e)(1) it is the duty of an

attorney “[t]o maintain inviolate the confidence, and at every peril to himself or herself to

preserve the secrets, of his or her client.” This would seem to indicate that the client’s statement

cannot be disclosed. However, in 2003, the Legislature added subdivision (e)(2), which states

“[n]otwithstanding paragraph (1), 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 or, or substantial bodily harm to, an individual.” This provision

became effective on July 1, 2004.

B. Evidence Code section 956.5

This section states that there is no attorney-client privilege “if the lawyer reasonably believes that

disclosure of any confidential communication relating to representation of a client is necessary to

prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or

substantial bodily harm to, an individual.” This is an evidentiary rule, while Business &

Professions Code section 6068 is a codified rule of conduct. However, in determining whether

statements containing threats which were made within the attorney-client relationship are

admissible, it has been noted that “[m]atters involving the commission of a crime or a fraud, or

circumstances in which the attorney reasonably believes that disclosure is necessary to prevent

the commission of a criminal act likely to result in death or substantial bodily harm, are statutory

and well-recognized exceptions to the attorney-client privilege.

(People v. Dang (2001) 93 Cal.App.4th 1293, 1298-1299, citing General Dynamics Corp. v.

Superior Court (1994) 7 Cal.4th 1164, 1191.)

Attorneys should, however, be aware that they may be required to testify to attorney-client

communications which they have or could have disclosed under Business & Professions Code

section 6068.

C. California State Bar Rules of Professional Conduct

Rule 3-100 states that (A) A member shall not reveal information protected from disclosure by

Business & Professions Code section 6068, subdivision (e)(1) without the informed consent of

the client, or as provided in paragraph (B) . . . (B) 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 or substantial bodily harm to, an individual. (C)

Before revealing confidential information to prevent a criminal act . . . a member shall, if

reasonable under the circumstances: (1) make a good faith effort to persuade the client: (i) not

to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent

the threatened death or substantial bodily harm; or do both . . . and (2) inform the client, at an

appropriate time, of the member’s ability or decision to reveal information as provided in

paragraph (B).”

D. RPC 1.6 (Rule of Professional Conduct)

CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall 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 paragraph (b).

(b) A lawyer to the extent the lawyer reasonably believes necessary:

(1) shall reveal information relating to the representation of a client to prevent

reasonably certain death or substantial bodily harm;

(2) may reveal information relating to the representation of a client to prevent the

client from committing a crime;

Although the public interest is usually best served by a strict rule requiring lawyers to preserve

the confidentiality of information relating to the representation of their clients, the confidentiality

rule is subject to limited exceptions.

Paragraph (b)(1) recognizes the overriding value of life and physical integrity and requires

disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.

Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present


and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take

action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally

discharged toxic waste into a town's water supply must reveal this information to the authorities

if there is a present and substantial risk that a person who drinks the water will contract a life-

threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat

or reduce the number of victims. (R.P.C 1.6) This rule also applies to the issue in question, the

lawyer should reveal his client’s confession if the is a life in danger.

Disclosure Adverse to Client:

Rule 1.6(b)(2), which authorizes disclosure to prevent a client from committing a crime, is

significantly broader than the corresponding exception in the Model Rule. While the Model Rule

permits a lawyer to reveal information relating to the representation to prevent the client from

"committing a crime . . . 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 the lawyer's

services," Washington's Rule permits the lawyer to reveal such information to prevent the

commission of any crime.

Moreover, research shows that R.P.C. 1.6 is strictly construed. The case of Alton Logan is

instructive. Two attorneys, Dale Coventry and Janie Kunz, knew that their client, Andrew

Wilson, had committed the murder for which another man, Alton Logan, was serving a life

sentence. (Hasbani, When The Law Preserves Injustice: Issues Raised by Wrongful

Incarceration Exception To Attorney-Client Confidentiality. The Journal of Criminal Law &

Criminology Vol 100 No.1.) Wilson had confessed to the crime while Alton Logan was being

tried. Unsurprisingly, Wilson did not authorize his lawyers to disclose this information and


ethical rule 1.6 required the lawyers remain silent. Twenty-six years later, after Wilson died, the

two lawyers signed affidavits revealing the information on the basis that Wilson had agreed to

the disclosure after his death. There was no question that the two attorneys could reveal the

information without the consent of their client.

Similarly, a North Carolina lawyer, Staple Hughes, revealed his client’s confession in 2004,

hoping to free Lee Wayne Hunt from his life sentence in prison. According to Hughes, twenty-

two years earlier his client confessed to Hughes that he had committed the murders for which

Hunt was convicted. Hughes’ client had also died. The judge refused to admit Hughes

information because “Mr. Hughes has committed professional misconduct.” Hughes was referred

to the North Carolina bar for disciplinary action for violating the attorney client privilege.

Traditionally, an attorney had no duty to anyone other than the client, first because of the

contractual nature of the relationship, and second, because the underlying theoretical basis of the

role of the lawyer as advocate precludes a concern for others, including third parties. Despite a

great deal of debate over whether a lawyer should be required to give a warning when a client

threatens serious harm to a third party, the ethical rules in most jurisdictions do not require such

a warning. As of 2000, only eleven jurisdictions - Arizona, Connecticut, Florida, Illinois,

Nevada, New Jersey, New Mexico, North Dakota, Texas, Virginia, and Wisconsin - required a

lawyer to reveal client confidential information to prevent the client from inflicting serious

bodily harm or death upon a third party. (Cooper, The Ethical Rules Lack Ethics: Tort Liability

When A Lawyer Fails To Warn A Third Party Of A Client’s Threat To Cause Serious Physical

Harm Or Death (2000) 36 Idaho L. Rev. 479.)

With the addition of Business & Professions Code section 6068, subdivision (e)(2), it appears

that California has declined to join those jurisdictions. Rather, the subsection is modeled on the


ABA Model Rules of Professional Conduct, Rule 1.6, supra, which requires that a lawyer “not

reveal information relating to representation of a client unless the client gives informed consent”

except that “a lawyer may reveal such information to the extent the lawyer reasonably believes

necessary . . . (1) to prevent reasonably certain death or substantial bodily harm . . . “

In practice, when faced with a situation like the hypothetical presented above, how does one

apply these rules? In order to determine this, it is necessary to understand what they do and do

not require.

1. Disclosure is Permissive, Not Mandatory

By its own terms, section 6068, subdivision (e)(2) states that an attorney “may, but is not

required to” reveal confidential information regardless of whether the client has threatened

physical harm. Rule 3-100(E) expressly states “A member who does not reveal information

permitted by [this rule] does not violate this rule.” Given California’s expressed strong interest

in confidentiality and protecting the client, disclosures are not mandatory, and any such

disclosures should be made only to the extent reasonably necessary to prevent the foreseen harm.

(Mohr, California’s Duty of Confidentiality: Is It Time For a Life-Threatening Criminal Act

Exception? (2002) 39 San Diego L. Rev. 307, 351.)

Thus, no matter what the client tells the attorney, the attorney is under no obligation to reveal the

confidential communication unless he or she wishes to do so. Among the factors to be

considered in determining whether to disclose confidential information are the following:

a. the amount of time that the attorney has to make a decision about disclosure;

b. whether the client has made similar threats before, and whether they have ever acted

or attempted to act upon them;


c. whether the attorney believes his or her efforts to persuade the client not to engage in

criminal conduct have or have not been successful;

d. the extent of adverse effect to the client’s rights under the Fifth, Sixth, and Fourteenth

Amendments of the United States Constitution and analogous rights and privacy rights under

Article One of the Constitution of the State of California that may result from disclosure

contemplated by the member;

e. the extent of other adverse effects to the client that may result from disclosure

contemplated by the member; and

f. the nature and extent of information that must be disclosed to prevent the criminal act

or threatened harm.

(Comment [6] to Rules of Professional Conduct, rule 3-100).

2. What Is “Confidential Information”?

Neither the Model Rules, the California Rules of Professional Conduct, nor Business &

Professions Code section 6068, subdivision (e)(2) contains a clear definition of “confidential

information.” Rule 1.6 refers to it only as “information relating to the representation of the

client.” Rules of Professional Conduct, rule 3-100 defines it as “information protected from

disclosure by Business & Professions Code section 6068, subdivision (e)(1)”, which in turn

refers to it only as “confidence” and “secrets.” “Maintaining confidence” has been defined in a

California State Bar ethics opinion as not doing anything that would “breach the trust reposed in

[the attorney] by the client.” (State Bar of California Compendium on Professional

Responsibility (Mar. 1989) Formal Op. 1988-1996.)


A secret has been defined as “other information gained in the professional relationship that the

client has requested be held inviolate or the disclosure of which would be embarrassing or would

be likely to be detrimental to the client. Because these terms are so loosely defined, it has been

suggested by one commentator that a lawyer’s authority to disclose confidential information

should be limited to the client’s prospective criminal acts. (Mohr, California’s Duty of

Confidentiality: Is It Time For A Life-Threatening Criminal Act Exception? (2002) 39 San

Diego L. Rev. 307, 364.)

3. Informing The Client That Disclosure Will Be Made

Rule 3-100(C)(2) requires attorneys to inform the client, at an appropriate time, of the decision to

reveal confidential information, if reasonable under the circumstances. Obviously this is not

necessary if doing so would likely increase the risk of death or substantial bodily harm, not only

to the originally intended victim of the criminal act, but also to the attorney or members of the

attorneys’ family. Among the factors to be considered in determining an appropriate time, if

there is one, to inform a client are as follows:

a. whether the client is an experienced user of legal services;

b. the frequency of the attorney’s contact with the client;

c. the nature and length of the professional relationship with the client;

d. whether the attorney and client have discussed the attorney’s duty of confidentiality or

any exceptions to that duty;

e. the likelihood that the client’s matter will involve information which will be disclosed;


f. the attorney’s belief, if applicable, 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

g. the attorney’s belief, if applicable, that good faith efforts to persuade a client not to act

on a threat have failed.

(Comment [9] to California State Bar Rules of Professional Conduct, rule 3-100).

Can an Attorney Be Liable In Tort For Failing To Disclose A Confidential Communication

About A Crime Which Does In Fact Occur, Resulting In Death Or Serious Bodily Injury?

Traditionally, in order to establish a prima facie case for the tort of negligence, a plaintiff must

establish each of four elements: (1) a duty to conform one’ conduct to a standard of reasonable

care; (2) breach of that duty; (3) causal connection or proximate cause; and (4) actual damages.

(W. Page, Keeton, et. al., Prosser And Keeton On The Law Of Torts (1984) section 30, 5th ed.)

The common law generally recognized no duty to act; however, the existence of certain special

relationships gives rise to a duty: “There is no duty to control the conduct of a third person as to

prevent him from causing physical harm to another unless: (a) a special relation exists between

the actor and the third person which imposes a duty upon the actor to control the third person’s

conduct, or (b) a special relation exists between the actor and the other which give the other a

right of protection. (Restatement (Second) of Torts (1965) section 314.)

When considering whether there could be tort liability for a failure to disclose, the case of

Tarasoff v. The Regents of the University of California (1976) 17 Cal.3d 425 inevitably comes to

mind. There, it was held essentially that a cause of action did lie against therapists who had in

fact determined that a homicide suspect presented a serious danger of violence to the victim, but

nevertheless failed to exercise reasonable care to protect her from that danger. Thus, when a


therapist determines, or pursuant to the standards of his profession should determine, that his

patient presents a serious danger of violence to another, he incurs an obligation to use reasonable

care to protect the intended victim against the danger. Does the reasoning of Tarasoff apply to

lawyers? Have we a duty to protect our client’s intended victims?

In California, the answer so far seems to be a resounding “no.” As stated above, Rule 3-

100(E) specifically states that a lawyer who does not reveal information permitted by the rule

does not violate it. Business & Profession Code section 6068 expressly states that an attorney

“may, but is not required to” reveal confidential information in this context. Model Rule 1.6

leaves a lot of “wriggle room”, stating in subdivision (b) “A lawyer may reveal information

relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm . . . “

There are, however, two Washington state cases which have begun what may be a trend

toward holding lawyers liable in tort for the actions of their clients. Hawkins v. King County

(1979) 24 Wn.App.338. [holding “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”]; State v. Hansen (1993) 122 Wn.2d 712 [holding that “attorneys, as

officers of the court, have a duty to warn of true threats to harm a judge made by a client . . .

when the attorney has a reasonable belief that such threats are real.”].) Thus, at least in

Washington state, courts are engaging in a balancing of interests, and finding that it weighs in

favor of a lawyer’s duty to the court and to society. (Sears, Blood On Our Hands: The Failure

of Rule 1.6 to Protect Third Parties from Violent Clients, and the Movement Toward a Common-

Law Solution (2003) 39 Idaho L. Rev. 451, 476.)


No California authority could be found espousing these same principles, and as stated

above, so far in California it does not appear that a lawyer is liable in tort for injuries inflicted by

his or her client. However, as the status of victim becomes ever more popular in our society, it is

likely that a duty to reveal their clients’ confidences in certain situations will eventually be

imposed upon attorneys.

CONCLUSION:

It seems clear that if a client makes a threat of death or serious bodily injury to another, attorneys

in California so far have no duty to disclose that communication. The decision to do so is totally

discretionary. However, should an attorney decide that he or she must make such disclosure, no

more may be revealed that is necessary to prevent the criminal act. (Rules of Professional

Conduct, rule 3-100(D)). In addition, before doing so, that attorney must, if reasonable under the

circumstances, make a good faith effort to persuade the client not to commit the act or to pursue

a course of conduct that will prevent the threatened death or substantial bodily harm, or both.

(Rules of Professional Conduct, rule 3-100(C)(1)).

Under California law, the privilege would not protect a statement that the client intended to

commit a future crime or fraud, and quite possibly would not protect confessions to other crimes

if they were unrelated to the current representation. In some states the rule does not apply if

disclosure is necessary to prevent harm to someone else. In California, the attorney can, but does

not have to, disclose such information. Once the information is disclosed, the attorney could be

called to testify about it.


hypotheticals- memo

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