Does a lawyer have an ethical duty to disclose that a client has told the lawyer she intends to commit suicide?

Plain-English summary

A lawyer took a pro bono assignment from the Lawyer Referral for the Elderly Project and established an attorney-client relationship with an individual. The lawyer then learned the client was suicidal, and the client asked the lawyer to draft a will and arrange her affairs. The lawyer asked what ethical responsibilities arise when a lawyer learns of a client's intent to commit suicide.

The committee began from the general rule that a lawyer may not divulge confidential information imparted by a client without the client's authorization (DR 4-101(A)). It noted that this duty is affected by other provisions of the Code where the client discloses an intention to commit a crime, or where the lawyer's knowledge might make the lawyer a party to a fraud or false statement. The committee concluded that failing to disclose an intent to commit suicide would not constitute aiding suicide under NMSA 1978, Section 30-2-4, and that it was aware of no other New Mexico criminal law relating to suicide.

The committee explained the general analytic path: where disclosed information indicates a crime may be committed, the lawyer should examine whether the act is in fact criminal or fraudulent and whether failing to disclose might make the lawyer a party to it; that inquiry determines the lawyer's duties. If the act is criminal or fraudulent, there is probably a duty to take some action, and at least one opinion (ABA Opinion 156 (1936)) stated a lawyer has a duty to advise the client of the consequences and to try to prevent continued wrongdoing. The committee noted DR 4-101(C) permits, but does not require, a lawyer to reveal a client's intention to commit a crime and the information necessary to prevent it, while some opinions hold public policy requires disclosure to proper authorities. Because the facts here did not indicate any crime or fraud, the committee concluded the lawyer had no duty to act.

Currency note

This opinion was issued in 1987, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The opinion applied DR 4-101, since superseded, and the confidentiality exceptions have changed materially. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer disclose that a client has said she intends to commit suicide?

A: The opinion concluded no, because suicide is not a crime under New Mexico law and a lawyer who does not disclose it does not become a party to any crime or fraud.

Q: Did the opinion treat failing to prevent a suicide as aiding suicide under NMSA Section 30-2-4?

A: No. The committee concluded that failure to disclose an intent to commit suicide would not constitute aiding in the commission of suicide under that statute.

Q: When does a client's disclosure of a planned act create a duty to act?

A: The opinion explained that when disclosed information indicates a crime or fraud may be committed, the lawyer should examine whether the act is in fact criminal or fraudulent and whether non-disclosure would make the lawyer a party to it; that inquiry, not the disclosure alone, determines the lawyer's duties.

Q: Did the Code require disclosure of a client's intent to commit a crime?

A: The committee read DR 4-101(C) as permissive rather than mandatory, allowing but not requiring a lawyer to reveal a client's intention to commit a crime and the information necessary to prevent it, while noting some opinions found a public-policy duty to disclose.

Background and rules framework

The opinion applied the former New Mexico Code of Professional Responsibility, principally DR 4-101 (preservation of client confidences and secrets, DR 4-101(A), and the permissive exception in DR 4-101(C) allowing revelation of a client's intent to commit a crime and the information necessary to prevent it). It read the confidentiality duty against New Mexico's criminal statute on assisting suicide, NMSA 1978, Section 30-2-4. The confidentiality rule corresponds to current Rule 1.6.

Citations and references

Rules of Professional Conduct:

• DR 4-101(A) (general duty to preserve client confidences and secrets)
• DR 4-101(C) (permissive revelation of a client's intent to commit a crime and information necessary to prevent it)

Statutes:

• NMSA 1978, Section 30-2-4 (Repl. Pamp. 1984) (assisting suicide)

Other opinions cited:

• ABA Opinion 156 (1936): duty to advise a client of the consequences of a contemplated wrongful act and to endeavor to prevent its continuance
• ABA Opinion 314 (1965); ABA Opinion 202 (1940): public policy may require disclosure of a client's intent to commit a crime

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-1.pdf

Original opinion text

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

Advisory Opinion 1987-1
This request was made by an attorney who took pro bono assignments from the Lawyer Referral for the Elderly Project. After the lawyer had established an attorney-client relationship with an individual, the attorney learned that the client was suicidal. The client then requested that the attorney draft a will for her and to arrange her affairs.
The question presented by the request concerned ethical responsibilities where the attorney learns of the client's intent to commit suicide. Based upon the facts presented in the letter, the committee reached the following conclusions.
In general, a lawyer may not divulge confidential information imparted to him by the client, unless authorized to do so by the client. (DR 4-101(A)). On the other hand, where the client has imparted information that discloses his intention to commit a crime, or where the lawyer, by reason of having such information, may be a party to a fraud or false statement, this general duty is affected by other provisions of the Code.
The committee does not believe that the failure to disclose an intent to commit suicide would constitute aiding in the commission of suicide contrary to NMSA 1978, § 30-2-4 (Repl.Pamp.1984). Nor is the committee aware of other New Mexico criminal laws relating to suicide.
Where the information disclosed by a client indicates that a crime may be committed, the attorney should examine whether the act is in fact criminal or fraudulent and whether his failure to disclose the information might constitute aiding in the commission of fraud or the crime. The results of that inquiry will determine the duties of the attorney.
If the attorney determines that the act is criminal or fraudulent, there is probably a duty to take some action. At least one opinion has stated that an attorney has a duty to advise the client of the consequences of the act, and to endeavor to prevent a continuance of wrongdoing (see ABA opinion 156 (1936)).
DR 4-101(C) states that an attorney may reveal the intention of his client to commit a crime and the information necessary to prevent the crime. Such language is permissive, rather than mandatory, but there have been several opinions holding that public policy requires a disclosure of such information to the proper authorities (see ABA 314 (1965); ABA opinion 202 (1940); ABA opinion 156 (1936)). Because the facts given to us do not indicate the possibility of any crimes or frauds, we do not believe that the attorney has a duty to act.