The attorney-client relationship is a cornerstone of legal practice. It is, however, not without its exceptions. Last month we discussed the reality that even when a lawyer is in compliance with ethical and legal standards, there is still the issue of potential civil liability. The famous Tarasoff case was discussed as an example of an analogous situation in the psychotherapy world. This column will examine how another jurisdiction discussed Tarasoff principles in an attorney-client privilege situation.
California law and ethical rules
California Business and Professions Code Section 6068(e)(1) states that one of the duties as an attorney is "(t)o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Subsection (e)(2) states that "Notwithstanding 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 of, or substantial bodily harm to, an individual."
Similar wording appears in California Rule of Professional Conduct 3-100, Confidential Information of a Client, which permits a member 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 of, or substantial bodily harm to, an individual." (CRPC 3-100(B)).
Although a lawyer who believes his or her client intends to harm a third party but decides to keep the information confidential is not in violation of this rule, (CRPC 3-100(E)), that may not end the inquiry. The state of Washington applied Tarasoff principles to a lawyer sued for negligence.
Ethical duty vs. civil liability: The Tarasoff decision applied in Washington state
In Hawkins v. King County (1979) 24 Wash.App.338, the court affirmed a grant of summary judgment in favor of an attorney sued by the mother of his client for negligence in failing to reveal information about his client Hawkins' mental health. Hawkins was in custody for marijuana possession. His attorney, Sanders, was told by Hawkins' former attorney that Hawkins was dangerous and mentally ill. (Id. at 340.) The former attorney had in fact been hired by Hawkins' mother to attempt to have Hawkins committed civilly or hospitalized. (Id.) A psychiatrist who examined Hawkins told Sanders that he believed Hawkins should not be released because he was mentally ill and dangerous to himself and others. (Id.) Sanders did not represent any of these facts at the bail review hearing, and Hawkins was subsequently released. (Id.) After Hawkins was released from custody he assaulted his mother, who had been informed of his release, and jumped off a bridge in a suicide attempt that resulted in the amputation of both of his legs. (Id.) Hawkins' family sued the attorney for malpractice for failing to reveal the mental health information at the bail hearing, and for negligent failure to warn foreseeable victims. (Id. at 340-41.)
The court recognized Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425 for the appellants' proposed theory that an attorney who learns that his client is planning to assault someone has a common law duty to warn the foreseeable victim. (Id. at 343-45.) The court, however, found that when the duty to warn would compromise client confidentiality, the obligation was merely permissive "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." (Id. at 344.)
The court distinguished Tarasoff on several grounds. Unlike the victim in Tarasoff who was unaware of her danger, Hawkins' mother and sister knew he had been released and was potentially dangerous; therefore, Sanders had no duty to warn Hawkins' mother of a risk of which she was already aware. (Id. at 345) Further distinguishing this case from Tarasoff was the lack of information that Hawkins was planning to assault someone; Sanders only knew that he was mentally ill and likely dangerous. (Id.) Finally, unlike the therapist in Tarasoff who received information directly from his client, Sanders never received any information directly from Hawkins. (Id.) Regarding the information revealed at the pretrial hearing, the court concluded that "(t)he common law duty to volunteer information about a client to a court considering pretrial release must be limited to situations where information gained convinces counsel that his client intends to commit a crime or inflict serious injury upon unknowing third persons." (Id.) The court did not find such a duty in this case. (Id.)
Patrick Mazzarella is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at email@example.com. Comments may be published as Letters to the Editor. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.