Issue: February, 2007
Author: John M. Burman
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Ethically Speaking - An Attorney's Duty to Warn
Last issue’s column was entitled: “The Disclosure of Confidential Information Under the New Wyoming Rules of Professional Conduct.” While it focused primarily on attorneys’ ethical duties to disclose, or when they ethically may disclose confidential information, it addressed some of their legal obligations, namely the duties to report child abuse and abuse of a vulnerable adult. The column did not, however, discuss in detail the issue of whether a lawyer has a tort duty to warn another of impending physical harm, noting only that “[w]hether a lawyer has a legal duty is an issue unto itself, which will be discussed more fully in a later column.” This is that column.
It goes without saying. Attorneys have both ethical and legal duties. While often identical, those duties are not always the same, with the result that an attorney’s actions might be ethical (permitted by the Rules of Professional Conduct), but, at the same time, not meet the legal standard of a reasonable lawyer in Wyoming. A significant area where this potential exists is when a lawyer learns of a client’s intent to cause physical harm to another. As discussed in the last column, a lawyer “may” ethically disclose a client’s intent to commit a criminal act. That “may” becomes a “shall” when the Rule permitting disclosure (1.6(b)(1)) is read together with the Rule (4.1(b)) requiring disclosure to a third party to avoid assisting a client to commit a criminal or fraudulent act. Regardless of the general absence of an ethical duty to warn, however, the issue becomes when, if ever, does an attorney have a tort duty to warn another person?
Traditionally, a lawyer has owed a duty of confidentiality to each client, a duty which prevented the lawyer from disclosing information, even when such disclosure might significantly benefit others. That prohibition was never absolute, however, and a developing body of tort law is imposing a legal duty on professionals, including lawyers, to warn third parties of intended harmful actions of patients or clients.
The Tarasoff Case
The Tarasoff case is one whose name has become part of the everyday vocabulary of physicians, mental health professionals, and lawyers. “Tarasoff” has become synonymous with “duty to warn third persons about a patient’s or a client’s threats of physical harm.” And while its name is familiar to most health professionals and lawyers, its facts and holding are often misunderstood. Since it forms the basis of the so-called duty to warn, an accurate understanding of the case and its holding is critical to an understanding of the existence and extent of a duty to warn.
Prosenjit Poddar was a voluntary outpatient receiving mental health services at a University of California at Berkeley hospital. He met with a therapist, a psychologist, seven times before discontinuing treatment. During the therapy, Poddar disclosed that he was obsessed with a young woman, not named, but readily identifiable as Tatiana Tarasoff. And while she may have had some feeling for him at one time, that had come to an end, at least in her mind. Poddar, however, remained obsessed. He told his therapist that he intended to kill the young woman when she returned from spending the summer in Brazil.
Poddar’s therapist discussed the statement with his supervisor, and they decided to notify the campus police and request that the police detain Poddar for possible commitment. The police took Poddar into custody, but released him after he promised to stay away from Tatiana. Several weeks later, Tatiana returned home. No one told her or her parents of Poddar’s threats. Shortly thereafter, Poddar killed her. Tatiana’s parents sued the therapist and his supervisor (and others), alleging, inter alia, that they had had a duty to warn Tatiana of Poddar’s threats, that they had failed to do so, and that failure had led to her death.
The trial court sustained the therapists’ demurrer (a demurrer is analogous to a motion to dismiss) to the complaint, ruling that the therapists were not liable for Tatiana’s death because it was caused by Poddar, a third party, with whom the therapists had a confidential relationship. The case wended its way to the California Supreme Court, which ultimately ruled (the court issued two opinions, an initial decision and a decision on rehearing) in favor of the plaintiffs. In its opinion on rehearing, the court said that a legally cognizable tort claim could be stated if the complaint alleged that:
[T]he therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care to protect her from that danger.
The issue thus became whether the standards of the profession of psychology required the therapists to determine that Poddar presented a threat to Tatiana, and whether those standards required that the therapists take some action to protect Tatiana from that threat. And under some circumstances, the obligation to take reasonable steps to protect the intended victim might include a duty to warn that person. Given the procedural context of Tarasoff (an appeal from the granting of a demurrer), the California Supreme Court naturally did not need to and did not decide those issues. Rather, it said that a complaint that contained such allegations would state a cause of action against the therapists.
The key to the Tarasoff opinion, and the key to whether a therapist has a duty to warn, is how to determine when a therapist owes a duty to a third party. The court looked at two issues to answer the question. First, the court considered whether there was a “special relationship” which imposed liability on one person, the therapist, for the actions of another; the patient. Second, the court had to balance several policy factors.
The court had no difficulty finding a special relationship which could form the basis for tort liability for a therapist failing to warn the intended victim of one of the therapist’s patients. Such a relationship may arise, said the court, because of the defendant’s “relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct.” Applying that exception to the allegations, the Tarasoff court found “that a relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of care . . . .”
Turning to policy considerations, the court said that “[t]he most important of these considerations in establishing duty is foreseeability” of harm. As a general matter, therefore, “a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct.” When the foreseeable harm involves a third party, however, a defendant is legally responsible only if a “special relationship” exists between the defendant and the dangerous person or the defendant and the endangered person. Since the court had found such a relationship between Poddar’s therapist and either Poddar or Tatiana, and since it was foreseeable that Poddar would harm Tatiana, a duty of care arose, requiring the therapists to exercise reasonable care to protect her.
The court acknowledged that whether Poddar’s actions in harming Tatiana were foreseeable depended, in large part, on the therapists’ predicting dangerousness, a notoriously difficult task. That difficulty was insufficient, however, to eliminate any duty:
[W]e do not require that the therapist . . . render a perfect performance; the therapist need only exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.
The court also weighed the risk of unnecessary disclosures and the costs of requiring psychologists to violate the confidentiality of the psychologist-patient relationship, against the possibility of a warning saving an intended victim’s life. “The protective privilege ends,” said the court, “where the public peril begins.”
The Aftermath of Tarasoff
Tarasoff has been cited hundreds of times by courts throughout the country, including the Wyoming Supreme Court. Many of the cases involve the issue of whether professionals have a duty to disclose confidential information to protect third parties. Many others cite to Tarasoff's discussion of foreseeability as the key to determining if and when a tort duty arises in other contexts.
Tarasoff and the duty to warn have also been the topic of considerable academic debate, some authors arguing in favor of lawyers disclosing otherwise confidential information when necessary to warn, and others taking the opposite view. Tarasoff and the duty to warn have also been the topic of numerous articles for practitioners. That body of literature tends to take a different, more pragmatic approach, generally suggesting that lawyers act as if they have a duty to warn.
The reception in the courts has been mixed. The California Supreme Court itself has interpreted the opinion narrowly, refusing to extend its applicability beyond the situation where a therapist knows, or should know, of a patient’s specific threat to harm an identifiable person. Other courts have given the case a more expansive reading, suggesting that a duty to prevent harm may exist even where there is not a specific, identifiable victim (as it is not possible to warn a potential victim in such a case, appropriate steps might include initiating commitment proceedings). The divergent and often conflicting opinions make it impossible to say, with any degree of certainty, what the “rule” of Tarasoff is, especially outside of California.
Not surprisingly, there are no Wyoming opinions on point. The Tenth Circuit has, however, addressed the issue. In an opinion written by Judge Barrett, the court considered whether a psychiatrist was liable, under Colorado law, to third persons injured by one of the psychiatrist’s patients.
James Brady, Press Secretary for former President Reagan, was seriously wounded when John Hinckley attempted to assassinate the then President. Brady, and two others injured in the attempt, sued Hinckley’s psychiatrist, Dr. Hopper. The plaintiffs claimed that Hopper should have known that Hinckley was a danger to others, and, therefore, he should have taken steps to control Hinckley’s behaviors, including confinement, which would have eliminated the possibility of the assassination attempt.
Citing Tarasoff, a federal district court in Colorado granted the psychiatrist’s motion to dismiss, holding that since Hinckley had made no specific threat against Brady or the other plaintiffs, it had not been foreseeable that the plaintiffs would be injured; and in the absence of foreseeability, there could be no duty to the plaintiffs. The decision was upheld on appeal. Judge Barrett cited Tarasoff with approval, concluding that since there had been no threat to a specific, identifiable individual, Hinckley’s actions in injuring Brady and the others had not been foreseeable. Since the actions had not been foreseeable, there could have been no duty to the plaintiffs, the breach of which would lead to liability for Hinckley’s actions.
Whatever the precise legal effect of Tarasoff, the opinion has had a significant effect on the health care professions, especially the mental health profession. Some states, including Wyoming, have responded by enacting laws which require or allow mental health professionals to warn. In others, courts have imposed a Tarasoff-like duty to warn. The American Medical Association (“AMA”) has gone so far as to advise physicians that they may have a duty to warn potential victims of domestic violence. The failure to do so, concludes the AMA, may lead to medical malpractice lawsuits.
Lawyers and the Duty to Warn
Lawyers are among the professionals who may receive information suggesting that a third party is at risk from a client. And, not surprisingly, lawyers have been the targets of lawsuits based on the failure to warn. The issue is one with both ethical and legal implications. Accordingly, boards of professional responsibility and courts have grappled with the issue of when, or if, a lawyer should be allowed to, or is required to, breach the duty of confidentiality to warn a third party.
In Wyoming, a lawyer appears, at first blush, to have no ethical obligation to disclose threats to a third party, even a specific threat of serious harm or death to an identifiable individual. Rule 1.6(b)(1) says that a lawyer “may reveal” confidential information “to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a criminal act . . .”
Since an attack on another would be a criminal act, an attorney in Wyoming “may” disclose the client’s intention to commit such an act. Under Rule 1.6, therefore, the ethical duty is discretionary. Rule 1.6 does not, however, exhaust a lawyer’s ethical responsibilities regarding confidential information. As the commentary to the Rule notes, “[d]isclosure may be required . . . by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See . . . 4.1(b)..” Reading Rule 4.1(b) and Rule 1.6(b)(1) together leads to the conclusion that a lawyer may have an ethical duty to warn, at least in some circumstances.
Rule 4.1 governs a lawyer’s “[t]ruthfulness” in statements to non-clients. Paragraph (b) applies to passive behavior, i.e., when must a lawyer affirmatively disclose something about the lawyer’s client. It says that a lawyer “shall not knowingly . . . fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal act . . . by a client, unless disclosure is prohibited by Rule 1.6.”
Rule 1.6 does not prohibit disclosure of a client’s intent to harm another (a “criminal act”). It permits disclosure. The question thus becomes whether the failure to disclose that intent is “a material fact . . . necessary to avoid assisting a criminal act . . . by a client.” It is hard to argue that a reasonable belief in a client’s intent to commit a violent act is not “material.” It is very plausible to argue, however, that non-disclosure is not “assisting” a client to do anything. The plain meaning of “assist” is “to help” and, the argument goes, simply knowing of a client’s intention is not helping. To the contrary, the lawyer may well have attempted to dissuade the client from committing the intended act. Attempting to dissuade, of course, is not assisting.
The most that can be said, therefore, is that a lawyer has a duty not to assist a client who intends to commit a crime. So long as he or she does not, there is no ethical duty to disclose, even when Rule 4.1(b) is read together with Rule 1.6(b)(1).
But the legal question remains. Does a lawyer in Wyoming have a tort duty to disclose a client’s intent to physically harm a specific, identifiable individual? There is no Wyoming case law on point, and, rather surprisingly, there is not a lot of case law from other jurisdictions. What there is suggests that the duty is the narrow one outlined in Tarasoff.
In Hawkins v. King County, et al. the Washington Court of Appeals addressed a lawyer’s obligation directly. The court said that a lawyer has no duty to warn a third person 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.” Since the potential victims in that case knew of the client’s violent tendencies and of his release from confinement, the court affirmed a summary judgment in favor of the defendant lawyer.
A threat to a judge involved both the common law duty to warn and an attorney’s obligations as an officer of the court. In State v. Hansen, a recently discharged felon (Hansen), told a lawyer of his intent to get a gun and “blow away . . . the prosecutor, the judge and the public defender.” The lawyer told the prosecutor and the judge of the threat, leading to the individual’s arrest and conviction for the crime of intimidating a judge. On appeal, Hansen urged reversal on the basis, inter alia, that the lawyer had violated the attorney-client privilege in warning the judge.
The Washington Supreme Court found that Hansen had no attorney-client relationship with the attorney who had disclosed the threat (Hansen was only a prospective client seeking legal representation), but even if there had been such a relationship, the privilege would not have applied to the threats. Further, the court found that although the Washington Rules of Professional Conduct did not require disclosure (Washington’s Rule 1.6 is permissive, as is Wyoming’s), a lawyer in such a situation has an affirmative legal duty to warn a judge of a threat by a client or a third party. As officers of the court, lawyers have a duty to warn a judge of threats where the lawyer has a “reasonable belief that the threat is real.”47 The court distinguished Hansen from the earlier case of Hawkins because the judge in the former case had been unaware of the threat, while the potential victims in Hawkins had known of the client’s dangerous tendencies.
Where does that leave lawyers in Wyoming? It is ethically permissible to disclose a client’s threats of harm to another if the lawyer reasonably believes that disclosure is necessary to prevent the client from committing a crime. Further, a lawyer has an ethical duty to not assist a client in committing a crime. In the absence of assistance from the lawyer, however, disclosure is permissive, not required. Legally, however, disclosure may well be required, and the Hawkins case seems like a good guide for determining legal liability for several reasons.
First, the Wyoming Supreme Court has repeatedly cited Tarasoff's discussion of when a duty exists, focusing on the foreseeability of harm, just as the Hawkins court did. Second, there will be cases where a client makes a specific threat to harm an identifiable individual. Third, in such circumstances, it may be foreseeable, given what a lawyer knows or reasonably believes about his or her client, that the client intends to carry out the threat. And fourth, there will be times where the potential victim, whether a judge or not, is unaware of the threat. In such circumstances, it will be easy for a plaintiff’s lawyer to argue, and for a court to find, that a lawyer had a duty to warn because of the foreseeability of the plaintiff and the harm.
Whether a lawyer has a tort duty to disclose confidential information to protect a third party is, ultimately, a question of foreseeability. That is, is it foreseeable that a client will cause harm to a third party? The only time it is foreseeable is if the client makes a threat to harm a specific, identifiable person, and the lawyer reasonably believes that the client will act on the threat. In such circumstances, the potential benefits of breaching the confidential attorney-client relationship and taking steps to protect the potential victim seem to outweigh the costs of breaching the confidentiality of the attorney-client relationship and giving a potentially false warning.
Before disclosing confidential information to protect a third party, a lawyer has a duty to communicate with the client about the lawyer’s intentions, i.e. that the lawyer intends to reveal the information. Further, the lawyer has a duty to attempt to persuade the client not to act on the threat. And it appears that lawyers are very successful in persuading clients not to act.
In the only empirical study of how often lawyers learn of clients’ intentions to commit a violent crime and whether the lawyers tried to and succeeded in persuading them not to, two conclusions emerged. First, disclosure to a lawyer of a client’s intent to commit a crime is not unusual. Second, lawyers are generally successful in talking their clients out of taking the intended act. The author of the study concluded that: “[m]ost of the lawyers who reported having clients who were going to commit wrongful acts indicated that their clients did not commit the acts after talking with their lawyers. The lawyers believe they were largely responsible for preventing the harm.”
A lawyer’s ethical duties are clear when a client makes a threat to physically harm another individual. The lawyer may disclose the information, but first, the lawyer must (even if the lawyer has no intention of disclosing the threat), attempt to persuade the client not to carry out the threat. If that fails, and the lawyer is contemplating disclosing the information, the lawyer should advise the client of the lawyer’s intent to disclose the information (there may be times, of course, when neither discussion is possible, in which case the lawyer need not have them).
Legally, the case has not arisen in Wyoming yet, but a Wyoming lawyer should assume that he or she has a tort duty to take action to protect an identifiable victim of the client. That duty exists for two reasons. First, the lawyer has a special relationship, either with the client or the victim. Second, if the lawyer reasonably believes the client intends to act, harm to the intended victim is foreseeable. Given a special relationship and foreseeable harm, to a foreseeable plaintiff, a tort duty should exist.
John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at firstname.lastname@example.org.
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