THE COUNSELOR=S CORNER
The relationship between attorney and client changed, perhaps forever, in the beginning of the month of July of this year. For the first time ever, there are now certain circumstances in which attorneys can violate confidences told to them by their clients. Attorneys are governed by Rules of Professional Conduct and we are now told that we are permitted to breach the confidence of the client if we think that by doing so, we can prevent the client from perpetrating serious bodily injury or death upon another. Let me be clear; the lawyer is not OBLIGATED to do so, however, he is PERMITTED to do so if he feels that there is no other reasonable way to prevent the crime. The lawyer first has to attempt to talk the client out of committing the crime and if that doesn=t work the lawyer needs to consider whether or not this is the first criminal threat made by the client, and the effect that disclosing what he knows would have on the client. If the lawyer does decide to breach the confidence he is told not to breach it anymore than is necessary in order to prevent the crime.
Of course, clients may be watching what they say to their lawyers these days as this new Rule of Professional Conduct requires attorneys to let their clients know that they, if they so choose, can violate or breach the clients confidences.
This dramatically changes the rules from the days when an attorney would be disciplined for violating the clients confidence. This now encourages the attorney to do so under the right set of circumstances. The new rule of the Rules of Professional Conduct is Rule 3-100 and it is very clear in guiding attorneys along the decision making path. This rule was adopted by the Supreme Court of the State of California which is a prerequisite for a new rule of ethics to go into effect.
This is significantly different from my obligation in my career as a psychotherapist. When I see a patient while wearing the therapy hat, I am OBLIGATED to break the confidence if it is clear that my client is about to attempt to kill or seriously injure another. If I believe that to be the case, I am obligated to alert the intended victim and contact the police department in the town where the intended victim lives. That then would be the difference between the obligation of a therapist and that of an attorney in that the therapist MUST REPORT in this situation while the attorney now has the option of whether or not to report. As a psychotherapist I am also obligated to report in other situations such as that of child abuse and elder abuse and if I think my client is suicidal I can , at my option, take action and contact the client=s family members to head off the suicide attempt.
I like the new rule. The State Bar of California has attempted to have this accepted and adopted by the State Supreme Court since 1987 and the court has finally come around. I don=t see the down side. Of course, the potential client who wants to tell his attorney about something malevolent he is about to do might not agree, but oh, well, I can live with that.
Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth. Dr. Charlie writes a bimonthly column on legal and psychological issues. Dr. Charlie can be reached at (818) 244-8694 or at www.charlieunger.com.