My Client has Threatened to Injure Somebody

You have the discretion, but not a mandatory duty,
to report the threat, so as to prevent the crime.

1. SUMMARY

New Rule 1.6(b) of the Rules of Professional Conduct continues former Rule 3-100(B), giving an attorney the discretion to reveal otherwise confidential information when the attorney reasonably believes that disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm.  Once the attorney does so, the attorney can be required to testify at a trial against the client.

2. APPLICABLE LEGAL PRINCIPLES

A basic precept of attorney client law is that we do not reveal confidential client information to anyone.  As stated in the official discussion of former Rule 3-100 in the first paragraph, and repeated in the first paragraph of Comment [1] to present Rule 1.6:

“A member’s duty to preserve the confidentiality of client information involves public policies of paramount importance. (In Re Jordan (1974) 12 Cal.3d 575, 580 [116 Cal.Rptr. 371].)”

Prior to the promulgation of Rule 3-100, in People v. Clark (1990) 50 Cal.3d 583, the California Supreme Court held that a threat of future harm was protected by the attorney client privilege.  In Clark, the defendant communicated the threat to his psychologist, who was also a consultant to his attorney. The threat was to harm two third parties. 

That holding was abrogated as to the attorney client privilege by Evidence Code section 956.5, effective July 1, 2004.  That section now reads:

“There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.” 

Evid. Code section 956.5 was intended to overrule Clark with respect to the attorney client privilege.  People v. Michaels (2002) 28 Cal 4^th 486, 538.  There is no attorney client privilege when the client tells the attorney that the client intends to kill somebody or seriously injure them. People v. Dang (2001) 93 Cal App 4^th 1293, 1298.  Dang then permits the prosecutor to elicit the attorney’s testimony at a trial against the now former client. The attorney in Dang actually made the report to the district attorney. In Dang, the threat was to a witness in the case, not his own attorney.  The rule does not limit its applicability to who the intended victim is, or to whom the disclosure is made.

Also effective July 1, 2004, Business & Professions section 6068 was amended to read, as relevant:

Bus. & Prof. 6068(e)(2) “…an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”

The legislative intent was that Evid. Code section 956.5 and Bus. & Prof. section 6068(e)(2) should act in tandem.  Elijah W. v. Superior Court (2013) 216 Cal App 4^th 140, footnotes 3 & 15.  Thus, if the attorney discloses the threat, the attorney can be called as a witness to the making of the threat.  However, if the attorney does not disclose the threat, the attorney apparently cannot be called as a witness.

Also effective July 1, 2004, former Rules of Professional Conduct Rule 3-100(B) was promulgated in language nearly identical to Bus. & Prof. section 6068(e)(2). The rule was promulgated to avoid inconsistency between the statutes and the Rules of Professional Conduct. The discussion to Rule 3-100 refers to this disclosure exception as “narrow.”  

Effective November 1, 2018, Rule 3-100 has been replaced by Rule 1.6, which reads:

(b) A lawyer may, but is not required to, reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) to the

extent that the lawyer reasonably believes* the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes* is likely to result in death of, or substantial* bodily harm to, an individual, as provided in paragraph (c).

There is no absolute requirement that the violent act be “imminent.” The official discussion to Rule 1.6 recites:

A lawyer may also consider whether the prospective harm to the victim or victims is imminent in deciding whether to disclose the information protected by section 6068, subdivision (e)(1). However, the imminence of the harm is not a prerequisite to disclosure and a lawyer may disclose the information protected by section 6068, subdivision (e)(1) without waiting until immediately before the harm is likely to occur.

Under Clark, client threats are treated as privileged.  However, the code sections are written in a way that the source of the information does not have to be the client, nor do the acts have to carried out by the client.  

The law does not specify to whom disclosure can be made.  The case law discusses disclosure to the police authorities.  Comment [4], recites that the exception in Rule 1.6 “reflects a balancing between the interests of preserving client confidentiality and of preventing a criminal act that a member reasonably believes is likely to result in death or substantial bodily harm to an individual.” Thus, the rationale would support a report to the potential victim, police authorities, or anyone the lawyer believes will be able to help prevent the criminal act.