法律英语：19 Duties of Confidentiality for Lawyers（在线收听）

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is duties of confidentiality for lawyers and psychologists. Nicholas wrote:

What sorts of things [are] a psychiatrist required to tell the police, if you tell the psychiatrist in confidence? What about a lawyer?

Nicholas’ question pits the professionals’ potential duties to protect victims against the professionals’ duty of confidentiality to his or her client. The short answer is that psychotherapists are required in many states to inform police when the client makes a credible threat of violence against an identifiable victim. There are almost no situations where a lawyer is required to contact police, but a lawyer may choose to notify police in order to protect against imminent bodily injury or death.

Under general principles of tort law, no one has a duty to protect people from the violent acts of others. However, in some limited situations, you can be held responsible for the acts of people with whom you have a special relationship. In the landmark case of Tarasoff v. Regents of University of California, the California Supreme Court held that the special relationship between a psychotherapist and a patient imposes on the therapist a duty to act reasonably to protect the foreseeable victims of a patient. In Tarasoff, a patient told his therapist that he intended to kill his girlfriend. The therapist detained the patient for a limited time, but then released him when he appeared rational. Nobody warned the girlfriend or her parents about the threat. Sadly, the patient killed his girlfriend. The court held that the University, as the therapist’s employer, had a duty to warn the foreseeable victim of a credible threat and take necessary steps to protect the victim. This included notifying the police.

Several states have followed this modern trend, including Nebraska, Missouri, New Jersey, and Colorado. Some courts have limited this rule to cases where the patient makes a threat against a specific person. So, many courts have held that a therapist is not required to call the police when the patient makes a generalized threat of violence against society. These courts reasoned that when a threat is generalized, there is no meaningful way for the therapist to warn society at large. On the other hand, when the threat is against a specific person, the therapist can take effective steps to protect the individual.

This obligation to call the police seems to contradict a psychotherapist's normal duty of confidentiality. However, courts and state legislatures have recognized that confidentiality must yield to the duty to protect innocent third parties from violence. Therapists' obligations to their patients require them to keep information in confidence unless disclosure is necessary to avert danger to others, and even then therapists must do so discreetly and in a fashion that would preserve the privacy of patients to the fullest extent compatible with the prevention of the threatened danger.

The duty of confidentiality that lawyers owe their clients is stronger. Under the American Bar Association’s Model Rules of Professional Conduct, which many states have adopted by statute, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted” by certain exceptions. Please note that this duty of confidentiality is different than the attorney-client privilege, which is an evidentiary privilege. It works to allow an attorney to remain silent when asked about confidential communications with a client. The attorney-client privilege protects an attorney from being forced to speak, while the duty of confidentiality prevents an attorney from voluntarily disclosing client communications.

A lawyer’s duty of confidentiality applies to prospective clients, current clients, former clients and even dead clients in most situations. This duty also applies to a lawyer’s support staff, including secretaries, paralegals, and other lawyers working with the lawyer.

There are exceptions to this rule. Under the ABA Rules, a lawyer may disclose information related to representing a client in some situations:

in order to prevent reasonably certain death or substantial bodily harm
to prevent the client from committing a crime or fraud that the lawyer believes
will cause substantial injury to the financial interests or property of another
to ask another lawyer for advice about complying with these Rules
to defend himself or herself if there is a controversy with the client
to comply with other law or a court order
Note that the rule does not state that an attorney must disclose client confidences in any of the above situations. So, if the patient in the Tarasoff case had told his lawyer that he planned to kill his girlfriend, the lawyer would not have the same duty to tell the police that the therapist had. One rationale for this is that a therapist has a very different special relationship with his patient. A therapist is charged with the mental health of his patients and is trained to identify when his patient’s threats are credible. A lawyer has no special mental health training, and cannot know when his client is simply blowing off steam or actually intends to kill.

One main exception to a lawyer’s duty of confidentiality is under the Sarbanes–Oxley Act, which implements enhanced standards for all U.S. public company boards, management, and public accounting firms. Under the Act, lawyers who “appear and practice” before the SEC must report certain violations up the chain of command within the company. For example, if a lawyer represents a corporation, and a junior vice-president is doing something illegal under the Act, then the lawyer might have a duty to report it to a senior vice-president.

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