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question for the lawyers

post #1 of 16
2/17/10 at 7:42pm
Thread Starter 
I came across a case that I think I'm not supposed to get to until I'm a 3L, but maybe some of you might remember it: Spaulding v. Zimmerman (116 N.W.2d 704). Anyway I had a question about its application in the real world. Are lawyers ethically compelled to diverge this kind of information at their peril of their own clients to the other party? I'm a 1L and I'm only about more than half-way through civil procedure. I'm just curious because it seems on the one hand, that would violate attorney-client privilege, and on the other, the kid will inevitably die much sooner once the aneurysm ruptures. So the outcome of his settlement rested on the fact that he was a minor, but what if Spaulding wasn't a minor? I'd like some insight, I'm not sure if there's really a bright-line rule unless each individual state passed some sort of statute compelling parties to do so.
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post #2 of 16
2/17/10 at 10:26pm
gf is 2l, her response:

you will learn about this 2nd year in professional responsibility, if you have reason to believe someone may be injured, you do have a duty to inform the authorities, and it does not violate your attorney/client privileges.
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post #3 of 16
2/17/10 at 11:09pm
I'm a 3L (I have taken professional responsibility).

Basically, the above post is right, but there is some variance as to the degree of prospective harm that would occur in order to allow/require the attorney to divulge the information.

PS: At least at my school, you can take professional responsibility either 2L or 3L year. It's generally an easy (and surprisingly boring) class.
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post #4 of 16
2/17/10 at 11:21pm
hahah my gf wants it to be known that she did know there was variance in the severity necessary to inform
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post #5 of 16
2/18/10 at 1:16am
Quote:
Originally Posted by nealric View Post
I'm a 3L (I have taken professional responsibility).

Basically, the above post is right, but there is some variance as to the degree of prospective harm that would occur in order to allow/require the attorney to divulge the information.

PS: At least at my school, you can take professional responsibility either 2L or 3L year. It's generally an easy (and surprisingly boring) class.
I took it when I was a 1L. It was pass-fail. The professor gave us a homework assignment that roughly half the class completed, so the next assignment was to write about whether we did the assignment and why we did or did not do it.

As I was among those who didn't, my reply was that his assignment was inconsequential. But having started off on that vein, I made him laugh because of the length I ended up writing that kiss-off reply.
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post #6 of 16
2/18/10 at 1:42am
Check out Model Rules 5.08(b).
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post #7 of 16
2/18/10 at 2:14am
Quote:
Originally Posted by Bilavideo View Post
Check out Model Rules 5.08(b).
WTH is this? Are you making this stuff up?
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post #8 of 16
2/18/10 at 2:25am
Quote:
Originally Posted by chesebert View Post
WTH is this? Are you making this stuff up?
Hahahahahaha. Okay, so you ARE awake.

Look at Rule 1.6(b)(1) of the ABA's Model Rules of Professional Conduct.
Model Rules of Professional Conduct - Rule 1.6 Confidentiality Of Information - Center for Professional Responsibility

Model Rules of Professional Conduct
Client-Lawyer Relationship
Rule 1.6 Confidentiality Of Information
(a) 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 paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;

You'll need to check the Rules of Professional Conduct that apply to the state in which you expect to practice, but it's pretty much boilerplate stuff.
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post #9 of 16
2/18/10 at 2:49am
Quote:
Originally Posted by pistolsnipe View Post
gf is 2l, her response:

you will learn about this 2nd year in professional responsibility, if you have reason to believe someone may be injured, you do have a duty to inform the authorities, and it does not violate your attorney/client privileges.
This is fundamentally wrong. Your only duty is to keep your mouth shut (SOX exception notwithstanding).
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post #10 of 16
2/18/10 at 3:14am
Quote:
Originally Posted by chesebert View Post
This is fundamentally wrong. Your only duty is to keep your mouth shut (SOX exception notwithstanding).
There are those who espouse exactly your point of view. They say that the lawyer cannot divide his or her loyalties between that of the client and that of some other party. Since Watergate, there has been an emphasis on teaching ethics to lawyers, but legal ethics can be an oxymoron. There's a need to have boundaries, particularly for when the lawyer is expected to have a greater duty to society than to the lawyer/client relationship.

But a lawyer sticks his or her neck out when trying to do "the right thing." The lawyer needs to make sure that any such disclosure is well justified. The Model Rule specifies a fairly high degree of certainty and injury. The likelihood must be "reasonably certain." The harm must be "death" or "substantial bodily injury." It's not a kneejerk impulse to be a goody-goody.
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post #11 of 16
2/18/10 at 5:28am
But not every state has adopted the model rules.

And quite a few adopted them with modifications.

Your obligations depend on the rules your jurisdiction adopted.

The CYA approach is to make a call to your state bar's ethics counsel, tell them the situation and ask them what you should do. Then you send them a letter reiterating their response and telling them how you handled the situation in accordance with their advice. Be sure to thank them, too.

This will keep you out of disciplinary trouble and head off liability claims. It can help if you call your professional liability carrier (and you should have a professional liability carrier), too. Be sure to go along with their guidelines.

Maybe this is an ethical cop-out, but remember that the disciplinary counsel is experienced with these sorts of matters. I've never hesitated to call them and have personally felt that the "right thing" was done each time. It's also OK to go a little further - I've refunded funds even when told it wasn't necessary.

Gray areas are gray areas, but I've found it best to back into the white whenever possible. Maybe you'll lose some money, but you're always better off staying out of the gray.
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post #12 of 16
2/18/10 at 8:04am
Thread Starter 
Thanks for the responses everyone, I checked to see if the Model Rules of Professional Conduct were adopted in Massachusetts and it seems they were: M.R.P.C. 1.6(b)(1): to prevent the commission of criminal or fraudulent acts the lawyer believes will lead to certain death. Further, comment 9A gives an additional description tightening the standard (from the older standard) upon which disclosure is justified, and it seems like there has to be something greater than negligence and maybe even recklessness.

I'll certainly check for examples in cases, and contact the Mass. bar ethics counsel to see what their take on it would be.
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post #13 of 16
2/18/10 at 1:11pm
Quote:
But not every state has adopted the model rules.

And quite a few adopted them with modifications.

Your obligations depend on the rules your jurisdiction adopted.

The CYA approach is to make a call to your state bar's ethics counsel, tell them the situation and ask them what you should do. Then you send them a letter reiterating their response and telling them how you handled the situation in accordance with their advice. Be sure to thank them, too.

This will keep you out of disciplinary trouble and head off liability claims. It can help if you call your professional liability carrier (and you should have a professional liability carrier), too. Be sure to go along with their guidelines.

Maybe this is an ethical cop-out, but remember that the disciplinary counsel is experienced with these sorts of matters. I've never hesitated to call them and have personally felt that the "right thing" was done each time. It's also OK to go a little further - I've refunded funds even when told it wasn't necessary.

Gray areas are gray areas, but I've found it best to back into the white whenever possible. Maybe you'll lose some money, but you're always better off staying out of the gray
Sounds like the winning response to me.

I think legal ethics kind of operates on a different plane from ordinary day-to-day ethics. I've seen some schools refer to the class as "Regulation of the legal profession"- that seems to better encapsulate what it's about.
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post #14 of 16
2/19/10 at 8:26am
Thread Starter 
Quote:
Originally Posted by nealric View Post
Sounds like the winning response to me.

I think legal ethics kind of operates on a different plane from ordinary day-to-day ethics. I've seen some schools refer to the class as "Regulation of the legal profession"- that seems to better encapsulate what it's about.
I agree, I have yet to take this class but with all these model codes and procedural standards out there, the legal profession has done a good job regulating itself. I wonder if it's the states that are slow to adopt these standards, it seems judges are quicker to adopting them (within case law) than states' adoptions in either a wholesale statute or in part in some other form.
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post #15 of 16
2/19/10 at 8:10pm
Well, this thread has been a revelation. I had no idea so many of us had been to law school.
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