Estate Planning and Elder Law attorneys often face ethical dilemmas. An all too real concern is: What do you do when your client tells you he or she is planning to commit suicide?
Those over age 65 have a higher rate of suicide than any other age group. So, this question is more than an esoteric question for Estate Planning and Elder Law attorneys.
Model Rule of Professional Conduct (MRCP)1.6(a) provides that a lawyer may not reveal client information, unless the disclosure is impliedly authorized to carry out the representation. An example of this would be if you undertake joint representation of a husband and wife. If the husband tells you he is thinking about suicide, you could tell the wife.
A more challenging situation arises when you have a client who has not consented to joint representation, like with a single client. In that case, the attorney would need to rely on the exception provided in MRPC 1.6(b)(1). Under (b)(1) a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes it necessary to prevent reasonably certain death or substantial bodily harm. However, prior versions of the Model Rules stated the exception somewhat differently and only allowed the information release to prevent a criminal act reasonably likely to result in death or substantial bodily harm. Similarly, under the Model Code of Professional Responsibility DR 4-101(C)(3), the attorney is allowed to release the information when the client has an intention to commit a crime and the release of the information is necessary to prevent the crime. In states where suicide is not illegal, the Model Code and the prior version of the Model Rules do not allow the release of the information.
If you encounter this situation in your practice:
- Check your state’s current professional responsibility rules.
- Consider whether the client consented to joint representation which would allow the disclosure.
- Check whether suicide is a crime in your state.
- Refer the client to the National Suicide Prevention Lifeline www.suicidepreventionlifeline.org (tel.: 1-800-273-TALK)