. Legal ethics

Protecting client confidentiality – how Fargo?

So sorry for the title if you are not a fan of a syntactically-challenged play on words.  But this news item out of Kentucky sounds like the kind of plot that would make for good fodder for a future season of the TV show Fargo.  (Which, yes if you are unfamiliar with it, is spun off from the same universe in which the critically-acclaimed film of the same name was set.)

The short version of the story is that a civil negligence lawsuit has been filed against a Bowling Green, Kentucky lawyer by someone who was never the lawyer’s client.  The suit involves a claim that the lawyer should have taken action to protect the plaintiff after the lawyer’s client informed the lawyer of a plot to poison the plaintiff.  The plaintiff, Dewayne Reid, has sued the Kentucky lawyer saying it was the lawyer’s duty to notify authorities or, apparently, encourage his client, Ashley Scott, to do so.

Scott, was a participant in drug court program under the supervision of Judy Reid, a case worker and the wife of the plaintiff.  According to the story and lawsuit, Mrs. Reid had asked Scott (with whom she also may have been having an affair) to obtain some poison that Mrs. Reid could use to kill her husband.  According to the lawsuit, Scott had said something about the plot to her lawyer but was advised not to say anything because she would not be believed and would get kicked out of the drug court program.

Mrs. Reid and another person, not Scott, are now facing criminal charges including attempted murder over the poisoning effort.  It appears Scott must not have assisted with the effort because the “poison” she was asked to procure — Opana, an opioid — wasn’t used.  The ultimate effort to poison plaintiff is alleged to have involved mixing Lorcet (a different opioid) and Xanax and putting it into his soup.  It also seems a safe guess that Scott must now be cooperating with the plaintiff for the lawsuit to be able to make allegations about what Scott’s lawyer advised her to do or not to do.

Setting aside the quirky-tv-dramedy angle, the interesting ethics issue is mentioned, but mostly glossed over, in the news article itself.  The existence of confidentiality protection for communications from clients is mentioned in the story, as is the existence of an exception when a lawyer “has reasonable belief that information disclosed by a client can prevent a reasonably certain death or substantial bodily harm.”  The story does not dig into the nature of that exception, nor mention that it is discretionary.

The story does have what would be a great quote from the plaintiff’s lawyer, but for the fact that it doesn’t exactly track what Kentucky’s ethics rules actually require:

“Just use good sense – if you find out somebody is going to be killed by another person … it might be a good idea to let police know. [snip]  As an officer of the court and a member of the bar, I think you would have a duty (to do so).”

He may think you would, but that’s not really how Kentucky’s rules work.  Kentucky’s RPC 1.6(b) tracks the ABA Model Rule approach and gives a lawyer discretion — “a lawyer may reveal” — in such circumstances about whether to disclose or not.  The existence of that discretion, of course, would raise questions about how, if it is a discretionary call, you could ever hold a lawyer responsible under negligence law to a third-party for exercising the discretion afforded by RPC 1.6(b) to decide not to say anything.  That issue exists and has to be wrestled with over and above the fact that Kentucky’s ethics rules, like many patterned after the ABA, also state in their “Scope” that they are not “designed to be a basis for civil liability.”

The hard choices presented in this scenario would be even more difficult if this kind of scenario played out in a jurisdiction like Tennessee.  We have a version of RPC 1.6 that makes disclosure for the purpose of preventing reasonably certain death or substantial bodily harm mandatory rather than discretionary.  Our RPC 1.6(c)(1) states that “[a] lawyer shall reveal [confidential information] of a client to the extent the lawyer reasonably believes disclosure is necessary to prevent reasonably certain death or substantial bodily harm.”   Of course, a plaintiff in a civil suit would still have to prove the lawyer ever had a sufficient reasonable belief that there was a “reasonably certain death or substantial bodily harm” situation in the works about which any disclosure was necessary to prevent before he could show that the Tennessee lawyer failed to comply with an ethical duty.  And we also have language in our Scope about how our rules are not designed to be a basis for civil liability.  But, unlike Kentucky where the moral and ethical dilemma for a lawyer in such a situation is left to the lawyer to sort out what to do, in Tennessee, a lawyer can actually be disciplined for keeping quiet and, presumably, a stronger argument perhaps made about whether or not the existence of such an ethical duty could also translate to a duty to a third party enforceable through a civil lawsuit.