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Prof Responsibility • Communication
PR#058
Legal Definition
In California, in addition to the 4 ABA exceptions to attorney-client privilege, a lawyer may also reveal confidential client communications to prevent a criminal act that will cause death or substantial bodily harm. However, before doing so, the attorney must first make a good faith effort to persuade the client to not commit (or continue to commit) the crime and inform the client, at an appropriate time, of the lawyer's ability or decision to reveal their confidences to authorities.
Plain English Explanation
California takes attorney-client privilege very seriously, but it draws the line at potential loss of life. While the bond between lawyer and client is sacred, it's not absolute when someone's life is on the line. This rule gives attorneys a way out of a moral dilemma: stay silent and potentially allow a tragedy, or speak up and betray a client's trust.
The rule is designed as a last resort. It doesn't give lawyers free rein to spill client secrets at the first hint of danger. Instead, it sets up a process. First, the lawyer must genuinely try to talk the client out of the dangerous plan. This step recognizes that the lawyer-client relationship itself might be the best tool to prevent harm.
Only if that fails can the lawyer consider breaking confidentiality. Even then, the lawyer must warn the client that they might have to reveal the information. This gives the client one last chance to reconsider and maintains some fairness in the process.
The rule is designed as a last resort. It doesn't give lawyers free rein to spill client secrets at the first hint of danger. Instead, it sets up a process. First, the lawyer must genuinely try to talk the client out of the dangerous plan. This step recognizes that the lawyer-client relationship itself might be the best tool to prevent harm.
Only if that fails can the lawyer consider breaking confidentiality. Even then, the lawyer must warn the client that they might have to reveal the information. This gives the client one last chance to reconsider and maintains some fairness in the process.
Hypothetical
Hypo 1: Sam, a client, confides in his attorney Bob that he plans to poison his ex-wife's dog because it barks too much. Bob tries to convince Sam that this is a terrible idea and could lead to criminal charges, but Sam seems determined. Result: In this case, Bob cannot reveal Sam's plans to the authorities. While poisoning a dog is certainly a crime, it does not meet the threshold of causing death or substantial bodily harm to a person. Bob must maintain client confidentiality, even though he knows about a planned crime.
Hypo 2: Sam tells his lawyer Bob that he's planning to burn down his business for the insurance money. Bob immediately tries to talk Sam out of it, explaining the legal and moral consequences. Sam brushes off Bob's concerns. Bob then informs Sam that if he goes through with this plan, Bob may have to report it to prevent potential loss of life. Despite this, Sam insists he'll do it anyway. Result: In this scenario, Bob can reveal Sam's plan to the authorities. Arson poses a significant risk of death or substantial bodily harm to people who might be in or near the building. Bob has fulfilled both requirements: he tried to dissuade Sam and informed him about the potential breach of confidentiality.
Hypo 3: Sam, visibly upset, tells his lawyer Bob that he just found out his teenage daughter is pregnant. In a moment of anger, Sam says he's going to "kill that boy" who got her pregnant. Bob calmly talks to Sam, helping him process his emotions and discuss legal options regarding the situation. By the end of the conversation, Sam has calmed down and says he was just speaking out of emotion. Result: In this case, Bob should not reveal Sam's statement. Although Sam mentioned "killing," it was clearly an emotional outburst rather than a genuine threat or plan. Bob used his relationship with Sam to de-escalate the situation, fulfilling the spirit of the rule without needing to breach confidentiality.
Hypo 2: Sam tells his lawyer Bob that he's planning to burn down his business for the insurance money. Bob immediately tries to talk Sam out of it, explaining the legal and moral consequences. Sam brushes off Bob's concerns. Bob then informs Sam that if he goes through with this plan, Bob may have to report it to prevent potential loss of life. Despite this, Sam insists he'll do it anyway. Result: In this scenario, Bob can reveal Sam's plan to the authorities. Arson poses a significant risk of death or substantial bodily harm to people who might be in or near the building. Bob has fulfilled both requirements: he tried to dissuade Sam and informed him about the potential breach of confidentiality.
Hypo 3: Sam, visibly upset, tells his lawyer Bob that he just found out his teenage daughter is pregnant. In a moment of anger, Sam says he's going to "kill that boy" who got her pregnant. Bob calmly talks to Sam, helping him process his emotions and discuss legal options regarding the situation. By the end of the conversation, Sam has calmed down and says he was just speaking out of emotion. Result: In this case, Bob should not reveal Sam's statement. Although Sam mentioned "killing," it was clearly an emotional outburst rather than a genuine threat or plan. Bob used his relationship with Sam to de-escalate the situation, fulfilling the spirit of the rule without needing to breach confidentiality.
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