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Advisory Opinion 42

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State Disciplinary Board
Advisory Opinion No. 42
November 16, 1984

Attorney's Disclosure of Client's Possible Intent to Commit Suicide

Pursuant to the provisions of Rule 4-223 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (219 Ga. as amended) the State Disciplinary Board of the State Bar of Georgia, after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Question Presented:  Attorney (A) represents client (C), who is facing a multiple felony indictment and substantial possibility of conviction thereon. C has sought advice from A concerning matters one would normally expect to be consulted about by a terminally ill person trying to put his affairs in order prior to death. Although C has never directly so stated to A, by his actions and conduct, C has led A to believe that C intends to commit suicide prior to his criminal trial.

A has inquired whether Informal Opinion No. 83-1500 of the ABA Standing Committee on Ethics and Professional Responsibility (June 24, 1983), which authorized a lawyer to disclose to other persons the definite threat of his client to take his own life would apply to a situation where the client has not definitely expressed such an intention, but, by his actions, has given his attorney reason to believe that he intends to take his own life.

Opinion:  For the same reasons set forth in ABA Informal Opinion No. 83-1500 (A copy of which is attached hereto and incorporated herein by reference), the Board is of the opinion that when an attorney reasonably believes his client is contemplating suicide, he should be permitted to disclose such information as a last resort in a life-or-death situation when the lawyer's efforts to counsel the client have apparently failed.

Standing Committee on Ethics
and Professional Responsibility

                       
Informal Op. 83-1500 
        Disclosure of Client's Intent
        to Commit Suicide
June 24, 1983

This inquiry involves the situation in which a client who has retained a lawyer to draft her will confides to the lawyer that she intends to take her own life. The client also disclosed that she has been hospitalized for mental exhaustion on at least one occasion after a previous suicide attempt. Neither suicide nor attempted suicide is a crime in the jurisdiction. The lawyer asks whether the ABA Model Code of Professional Responsibility prohibits the lawyer from disclosing to a third person the intention of his client to take her own life.

DR 4-101(B) of the ABA Model Code of Professional Responsibility prohibits a lawyer from revealing a confidence or secret of his client. An exception is provided in DR 4-101(C)(3), which permits a lawyer to reveal the intention of his client to commit a crime and the information necessary to prevent the crime. A literal reading of "crime" in this provision renders the exception inapplicable in the inquiring lawyer's jurisdiction. The same conclusion would be reached under proposed Model Rule 1.6(b)(1), which provides that a lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act the lawyer believes likely to result in imminent death or substantial bodily harm.

Ethics committees in two states have dealt with his problem. In Opinion 486 (1978), the Committee on Professional Ethics of the New York State Bar Association concluded that while suicide had been decriminalized in New York and DR4-101(C)(3) did not literally apply, the overriding social concern for the preservation of human life permitted the lawyer to disclose the information. The New York committee pointed out that the decriminalization of suicide in the state was not intended to effect any basic change in underlying common law and statutory provisions reflecting deep concern for the preservation of human life and the prevention of suicide. Accordingly, the committee analyzed an announced intention to commit suicide in the same manner as proposed criminal conduct under DR 4-101(C)(3). Addressing the same issue in Opinion 79-61 (1979),the Committee on Professional Ethics of the Massachusetts Bar Association determined that although neither suicide nor attempted suicide is in itself punishable under the criminal law of Massachusetts, both have in other respects been deemed to be malum in se and treated as unlawful and criminal.

That committee cited the New York State Bar Association Opinion 486 and reached the same conclusion.

We believe that in light of the following language of EC7-12 relating to proper conduct in dealing with the client with a disability, these Committees reached the proper conclusion:

Any mental or physical condition of a client that renders  him incapable of making a considered judgment on his own behalf, casts additional  responsibilities on his lawyer... If the disability of a client, in the lack of a legal  representative compel the lawyer to make decisions for his client, the lawyer should  consider all circumstances then prevailing and act with care to safeguard and advance  the interest of his client....

This concept is also recognized in the ABA proposed Model Rules of Professional Conduct:

  A lawyer may seek the appointment of a guardian or take  other protective action with respect to a client, only when the lawyer reasonably  believes that the client cannot adequately act in the client's own interest.

The inquirer may justifiably conclude that his client is unable to make a considered judgment on this ultimate life or death question and should be permitted to disclose the information as a last resort when the lawyer's efforts to counsel the client have apparently failed. This interpretation is limited to the circumstance of this particular opinion request and should not be relied upon to permit the disclosure of any other information in any other situation.



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