So somehow, given the time of year and the absolute flood of horrific news we all get exposed to on a daily basis, you might not have heard the news that a suicide bomber detonated a large bomb in the middle of downtown Nashville, Tennessee on Christmas morning.
The bomb detonated from the inside of an RV killing the suicide bomber, hurting 3 others, and doing significant property and infrastructure damage. My firm’s Nashville office was located several blocks away but was fortunate to sustain no damage.
As the story has developed, there is now an interesting legal ethics angle (or 2) to the events. Here’s a link to The USA Today article should you want to read it first: Nashville police were warned of Christmas bomber in 2019, report shows (usatoday.com)
As this latest story indicates, the suicide bomber’s girlfriend provided some information to the Nashville police more than a year before the incident that can be viewed as cause for concern. According to the media report, and apparently the accompanying police report, present and involved in that conversation was a Nashville attorney who held himself out to law enforcement as being a lawyer for both the girlfriend and the man about whom she was making a report to law enforcement.
That doesn’t seem at all like the kind of joint representation that the lawyer could have believed — at that point — was a conflict that could still be waivable/consentable. If the news report is to be believed, the purpose of the interaction with law enforcement was to get the police to take several firearms away from the residence because the girlfriend was afraid of her boyfriend having access to them. The reporting indicates that the attorney also said of the boyfriend, Warner, that he “knows what he is doing and is capable of making a bomb.” That disclosure is itself problematic unless the lawyer either had Warner’s consent or could otherwise justify it under RPC 1.6 (about which more later) but, if nothing else, it seems pretty clearly to signify a very strong divergence of interests between the two common clients.
The story goes on to then reveal that the lawyer declined a request from law enforcement to allow a search of Warner’s RV indicating his client would not consent and doesn’t explain at all whether law enforcement tried to get a warrant for such a search.
The other ethics issue that this story prompts for discussion to one degree or another is the role of lawyers in circumstances where they are legitimately worried that their client may be about to harm themselves or others. I have no idea if, at the time of the events in the story (back in August 2019), the lawyer could be held to a standard of having a sufficient degree of knowledge of such an outcome, but it could turn out to be an interesting angle on this story if the only justification for feeling like that kind of disclosure could be made in the first place about the client was a concern for safety.
For those of you who are lawyers reading this in states that have an ABA Model Rule version of RPC 1.6, it is worth your while to know that Tennessee deviates and goes further. Our rules require a lawyer to reveal information – despite the ethical duty of confidentiality – “to the extent the lawyer reasonably believes disclosure is necessary: (1) to prevent reasonably certain death or substantial bodily harm.” Tenn. Sup. Ct. R. 8, RPC 1.6(c).
That’s all from me in the absolute horror show of the year that was 2020. I hope to see you all in 2021, and I hope that we all end up together in a better place during the coming year.