Informal Opinion Number: 2020-03

Adoption Date: 2020

Rules: 4-1.6; 4-1.14; 4-2.1
Client-Lawyer Relationship
Confidentiality of Information
Client with Diminished Capacity
Counselor-Advisor
Subject: Confidentiality
Summary: client threatens suicide


QUESTION:
In a conversation with Attorney, Client has threatened suicide. What is Attorney ethically obligated or permitted to do?

ANSWER: In representing Client, Rule 4-2.1, Advisor, permits Attorney to refer not only to law but to other considerations such as moral and social factors that may be relevant to Client’s situation. Comments [4] and [5] to Rule 4-2.1 provide guidance that where consultation with a professional in another field is something a competent lawyer would recommend, Attorney should make such a recommendation. Although an attorney ordinarily has no duty to give advice the client has indicated is unwanted, Attorney may initiate such advice to Client if doing so appears to be in Client’s interest. Client’s statements to Attorney are confidential per Rule 4-1.6. If Client grants specific informed consent for Attorney to disclose client’s threats to one or more individuals or entities who may be able to assist Client, Attorney may do so. See Rule 4-1.6, Comment [2]; see also Rule 4-1.0(e) and Comments [6] – [8] (regarding “informed consent”). Without Client’s informed consent, Rule 4-1.6 permits Attorney to disclose Client’s threats to the extent required by other law or a court order. Rule 4-1.6(b)(4). Whether Attorney has any such legal obligation is a question of law outside the scope of the Rules of Professional Conduct. Rule 4-1.6(b)(1) permits Attorney to disclose Client’s threats to the extent reasonably necessary to prevent death or substantial bodily harm that is reasonably certain to occur. Death or substantial bodily 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 the lawyer fails to take action necessary to eliminate the threat. Rule 4-1.6, Comment [6]. The decision as to whether Attorney reasonably believes disclosure 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. See Informal Opinion 2019-05; see also Rule 4, Scope, at [14]; Rule 4-1.6 permits, but does not require, disclosure in accordance with paragraph (b). Rule 4-1.6, Comment [13]. Any disclosure per 4-1.6(b) should be no greater than what Attorney reasonably believes is necessary to accomplish the specified purpose. Rule 4-1.6, Comment [12]. 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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