Which of the following is the most accurate under the ethics rules?
Maria is a family law attorney whose practice consists mostly of divorce cases. She’s developed a reputation for handling particularly contentious and difficult matters. She often gets referrals from other attorneys who find their clients too difficult to represent.
One of these cases involves Brian, whose wife is divorcing him. Brian is distraught about the divorce, and it has him alternating between belligerence and self-pity. Maria is used to representing this type of client, and she has developed techniques to set boundaries and communicate effectively regarding the purpose of the representation.
One evening, she gets a call from Brian, and he is clearly despondent about the reality that his marriage is about to end. After talking to him for a while, Maria ends the conversation by saying she will talk to him tomorrow. Brian responds by saying “if I’m even here tomorrow. I don’t think I can go on without her.”
Life-and-death questions like this one present some of the most difficult decisions lawyers can face. The primary issue here is client confidentiality. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct states:
(a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.
(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations.
(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.
Rule 1.05(a) states that “[u]nprivileged client information” is defined as “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.” Rule 1.05(b) prohibits the disclosure of any confidential information to any third party without the client’s permission, except for employees of the attorney’s law firm.
So does this mean that even a client’s suggestion that he may take his own life cannot be revealed?
Fortunately, the Texas Disciplinary Rules of Professional Conduct were recently amended to address this specific situation. New Rule 1.05(b)(10) was added to permit a states that a lawyer “may reveal confidential information . . . [w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide.” Note that the Rule uses the term “may” instead of “must,” meaning the rule is permissive and not mandatory. The best response is D.