If a criminal client tells the lawyer he will commit suicide rather than go to jail if convicted, may the lawyer disclose that threat to the court or others?

Plain-English summary

The Committee addressed an attorney who represents a client charged with felony sexual assault who has no credible defense, refuses a plea bargain, and has told the attorney that if convicted the client will commit suicide rather than go to jail. The question was whether the attorney must disclose the client's stated intent.

The opinion concludes that under Alaska RPC 1.14, the attorney may disclose the client's stated intent to commit suicide to the proper authorities (the court, mental health professionals, or detention facility personnel), regardless of the client's custodial status, but is not required to do so. The Committee notes that ordinarily Rule 1.6(a) bars disclosure of a client's confidences and secrets, and the rule's crime-or-fraud exceptions do not apply because suicide is not a crime in Alaska. The opinion holds that Rule 1.14(b), which applies when the lawyer reasonably believes the client cannot adequately act in the client's own interest, permits disclosure in these circumstances and overrides the Rule 1.6 prohibition. The Committee reads the rule's authorization to "take other protective action" as permitting disclosure when the lawyer reasonably believes the client intends to carry out the threatened suicide.

The opinion adds that any disclosure must be limited to the information the lawyer reasonably believes is necessary to aid the client, that appropriate recipients depend on the circumstances (mental health authorities, law enforcement, family members, or clergy), and that the opinion does not address what non-legal advice the lawyer might give. On whether the lawyer may continue the representation after disclosure, the opinion notes that Rule 1.14 implies continuation of the relationship and that, per the ABA, withdrawal is an option but is not favored.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer whose client states an intent to commit suicide rather than go to jail if convicted has discretion, not a duty, to disclose that intent to appropriate authorities under Rule 1.14(b). The opinion frames the disclosure as permitted only when the lawyer reasonably believes the client cannot adequately act in the client's own interest and intends to carry out the threat, limited to the information reasonably necessary to aid the client, and directed to recipients suited to the circumstances. The Committee declined to address what non-legal advice the lawyer might offer the client.

Common questions

Q: Does Alaska require a lawyer to report a client's suicide threat?

A: No. The opinion concludes that under RPC 1.14(b) disclosure is permitted but not required; the choice rests in the lawyer's discretion.

Q: Doesn't confidentiality under Rule 1.6 bar telling anyone?

A: The opinion holds that Rule 1.6's crime-or-fraud exceptions do not apply because suicide is not a crime in Alaska, but that Rule 1.14(b) permits disclosure and, in this circumstance, overrides the Rule 1.6 prohibition.

Q: Who can the lawyer tell?

A: Per the opinion, depending on the circumstances the lawyer may contact mental health authorities, law enforcement, or individuals such as family members or clergy, and the disclosure must be limited to what is reasonably necessary to aid the client.

Q: Can the lawyer keep representing the client after disclosing?

A: The opinion says Rule 1.14 does not expressly address this but implies continuation of the lawyer-client relationship, and notes that the ABA treats withdrawal as an option that is "not favored."

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 1.14 (client with diminished capacity; Model Rule 1.14) against the confidentiality duty in Alaska RPC 1.6 (Model Rule 1.6). Rule 1.14(b) allows a lawyer to seek appointment of a guardian or "take other protective action" when the lawyer reasonably believes the client cannot adequately act in the client's own interest. The opinion also relies on the Restatement (Third) of the Law Governing Lawyers Section 66, which recognizes a confidentiality exception based on "the overriding value of life and physical integrity," and aligns Alaska with the ABA and several other state bars that have permitted such disclosure.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.14(b) (client with diminished capacity; protective action)
• Alaska RPC 1.6(a) (confidentiality of information)

Other authorities:

• Restatement (Third) of the Law Governing Lawyers Section 66 (2000)

Other opinions cited:

• ABA Informal Opinion 83-1500 (1983); ABA Informal Opinion 89-1530 (1989)
• N.Y. State Bar Op. 486 (1978); various state bar opinions on client suicide threats

See also

• ABA Formal Op. 96-404: Client Under a Disability
• AL Ethics Op. 1995-06: Protecting an Unstable Client
• ISBA Ethics Op. 17-01: Disclosing a Client's Addiction

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2005-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 2005-1
Responsibilities of the Attorney Representing a Client Who, After Being
Charged with a Felony Offense, Informs the Attorney of the Client’s
Intent to Commit Suicide if Convicted
Question Presented
An attorney represents a client charged with felony sexual
assault, but realizes that the client has no credible
defense. The client, however, is not interested in a plea
bargain and is adamant about taking the case to trial.
The client has further informed the attorney that if
convicted of the felony sexual assault, the client will
commit suicide rather than go to jail.
Must the attorney disclose the client’s stated intention to commit suicide
rather than go to jail if convicted?
The Committee concludes that under ARCP 1.14, the attorney may
disclose the client’s stated intent to commit suicide to the proper authorities
(e.g., the court, appropriate mental health professionals, or appropriate
detention facility personnel) irrespective of the client’s custodial status, but is
not required to do so.1
The Alaska Bar Association joins the American Bar Association and the
several other state bar associations that have addressed this issue. These
associations have determined that disclosure of a client’s suicidal intent is
permissible.2

ARCP 1.14 provides in pertinent part that a lawyer “may . . . 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.”
2
See ABA Informal Opinion 83-1500 (1983); Alabama Ethics Opinion RO90-06; 74 Conn. B.J. 238 (2000); Committee on Professional Ethics of the
Massachusetts Bar Association Opinion 79-61 (1979); N.Y. St. Bar. Assn. Comm. Prof.
Eth. Op. 486 (1978); N.Y.C. Assn. B. Comm. Prof. Jud. Eth. Op. 1997-2 (1997); Pa.
Bar. Assn. Comm. Leg. Eth. Prof. Resp. Op. 93-43 (1993); S.C. Bar Eth. Adv. Comm.
1

Analysis
Generally, an attorney may not reveal a confidence or secret concerning
the representation of a client without the client’s explicit or implicit consent.
ARPC 1.6(a).3 Of course, there are exceptions where the client engages in
criminal or fraudulent conduct, or raises a claim against the attorney.4 Those
exceptions, however, do not apply to the facts here because suicide is not a
crime in Alaska. Because no crime or fraud is involved, it may appear that
Rule 1.6 prohibits the disclosure of the client’s suicidal intent.5
In our opinion, Rule 1.14(b) permits disclosure of such information and
in this particular circumstance, overrides the prohibitions set forth in Rule.
1.6. Cf. 74 Conn. B.J. at 240.
Rule 1.14(b) comes into play “when the lawyer reasonably believes that
the client cannot adequately act in the client’s own best interest.”6 In those
circumstances, the lawyer either may seek the appointment of a guardian or
“take other protective action.” See Rule 1.14(b) (emphasis added). The
Committee interprets the phrase “take other protective action” to permit
disclosure of the client’s stated intent to commit suicide if the lawyer
reasonably believes that the client intends to carry out the threatened suicide if
sent to jail. Put another way, any differing interpretation of “other protective
action” would defeat the purpose of Rule 1.14(b) – namely, protecting the
health and safety of a client who the lawyer reasonably believes is unable to act
in his or her own interest.

Op.99-12 (1999); Utah St. Bar Op. 95 (1989). See also Restatement (Third) of Law
Governing Lawyers § 66 (2000).
3
Rule 1.6(a) provides, in pertinent part, that a lawyer “shall not reveal a
confidence or secret relating to representation of a client unless the client consents
after consultation, except for disclosures that are impliedly authorized in order to
carry out the representation, and except as stated in paragraph (b) or Rule 3(a)(2).”
4
See Rule 1.6(b).
5
But see Utah State Bar Op. 95 (1989) (explaining that although suicide or
other attempted suicide are not criminal, other bar associations that have dealt with
the situation “uniformly” deem such acts “to be malum in se and treated as unlawful
and criminal and therefore, subject to disclosure”).
6
See note 1.

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The Restatement recognizes an exception to the general duty of
confidentiality and client disclosure based upon “the overriding value of life and
physical integrity.” Comment b., Restatement (Third) of the Law Governing
Lawyers § 66. Other states that have addressed this issue frame the attorney’s
act of disclosure in such a situation as reflective of “certain principles of
conduct that a lawyer is obligated to uphold by the very nature of their office
and its relationship to society.”
These principles of conduct are the threads of our social
fabric. None is more basic than society’s concern for the
preservation of human life. A lawyer cannot be unmindful
of that concern.
N.Y. St. Bar. Assn. Comm. Prof. Eth. Op. 486 (1978). That basic principle –
“society’s concern for the preservation of human life” – is the foundation upon
which each of the seven other state bar associations and the American Bar
Association have based their conclusion that an attorney may disclose to the
proper authorities the client’s stated intention to commit suicide.7 The
American Bar Association has concluded that an attorney could disclose the
client’s declared intent to commit suicide to a third person, rationalizing that
this was permissible when the attorney has reason to believe that the client
cannot adequately act in the client’s own interests. See ABA Comm. on Prof’l
Ethics and Responsibility, Informal Opinion Op. 89-1530 (1989) (citing ABA
Comm. on Prof’l Ethics and Responsibility, Informal Opinion Op. 83-1500
(1983)). See also ABA Model Rules of Prof’l Conduct R. 1.14 cmt. at 245 (5th
ed. 2003).
The lawyer’s disclosure must be limited to the information the lawyer
reasonably believes is necessary to aid the client. See, e.g., Pa. Bar. Assn.
Comm. Leg. Eth. Prof. Resp. Op. 90-26 (1990); Utah State Bar Op. 95. Cf.
Comment, ARPC 1.6(b), “Disclosure Adverse to Client,” at ¶¶ 5-6 (explaining
that the lawyer has professional discretion to reveal that a client intends

7

See also note 2.

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prospective conduct that is likely to result in imminent death or substantial
bodily harm and that such discretion requires consideration of several factors).
If the lawyer decides to disclose the client’s stated intention to commit
suicide, the question then becomes to whom is the lawyer’s disclosure made?
It is the Committee’s opinion that depending upon the circumstances known to
the lawyer at that time, appropriate entities for the lawyer to contact could
include mental health authorities as well as law enforcement authorities. In
addition to these entities, individuals such as family members or clergy could
be appropriate resources for the lawyer to contact. See, e.g., Pa. Bar Assn.
Comm. Leg. Eth. Prof. Resp. Op. 93-43 (1993); Pa. Bar Assn. Comm. Leg. Eth.
Prof. Resp. Op. 90-26 (1990).
This opinion does not address the issue of what kind of non-legal advice
a lawyer might give to a suicidal client. The attorney can recommend that the
client seek the services of a mental health professional or contact their own
doctor, a crisis hotline, or friend or relative who could help arrange for
appropriate intervention or care. The attorney also may seek professional
guidance as to what to do under such circumstances. See 74 Conn. B.J. at
239 n.2; Pa. Bar Assn. Comm. Leg. Eth. Prof. Resp. Op. 93-43 (1993).
Finally, there is the question of whether the attorney can continue to
represent the client after having made such a disclosure. Alaska Rule 1.14
does not provide express guidance on this issue, but rather implies the
continuation of the lawyer-client relationship.8 The American Bar Association
further states that although withdrawal may be an option for the lawyer,
depending upon the degree of the client’s “impairment,” “it is not favored.” See
ABA Model Rules of Prof’l Conduct R. 1.14 cmt. at 242-43 (5th ed. 2003).
8
The Comment to Rule 1.14 provides in pertinent part that “if the client
has no guardian or legal representative, the lawyer often must act as de facto
guardian.” Comment, ARPC 1.14. The Comment further provides that “the lawyer
should as far as possible accord the represented person the status of client,
particularly in maintaining communication,” even if the person has a legal
representative. Id. Moreover, “[i]f a legal representative has already been appointed
for the client, the lawyer should ordinarily look to the representative for decisions on
behalf of the client.” Comment, ARPC 1.14.

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Approved by the Alaska Bar Association Ethics Committee on April 7, 2005.
Adopted by the Board of Governors on May 10, 2005.

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