Informal Opinion Number: 2019-05
Adoption Date: 2019
Client with Diminished Capacity
Question: Attorney’s Client has left Attorney voice mail messages that can be interpreted as containing threats of bodily harm against Attorney and others. May Attorney report the threats to law enforcement?
Answer: The fact that Client has left threatening voice mail messages with Attorney is information related to the representation governed by Rule 4-1.6, Confidentiality of Information. Attorney is not permitted by Rule 4-1.6 to report the threats to law enforcement unless Client gives informed consent to the report or Attorney is revealing the information to the extent Attorney reasonably believes necessary to prevent death or substantial bodily harm reasonably certain to occur, in accordance with Rule 4-1.6(b)(1). Comment  to Rule 4-1.6 provides guidance that “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 Attorney fails to take necessary action to eliminate the threat. The decision as to whether Attorney reasonably believes disclosure to law enforcement is necessary to accomplish the purpose specified in Rule 4-1.6(b)(1) will require the use of Attorney’s professional judgment in light of all the circumstances known to Attorney. Any report to law enforcement should be no greater than Attorney reasonably believes necessary to accomplish the purpose under Rule 4-1.6(b)(1). See Comment . A decision by Attorney not to report the threats would not violate Rule 4-1.6. See Comment . If Attorney believes Client is suffering from diminished capacity because of mental impairment, or for some other reason, Attorney should review Rule 4-1.14, Client With Diminished Capacity. Rule 4-1.14 may permit Attorney to take other reasonably necessary protective action to protect Client from substantial physical, financial, or other harm if Client is unable to act in his or her own interest.
Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.
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