Ethics Opinion

Opinion No. 79-6

June 1979

Summary: The attorney-client privilege does not bar an attorney or non-lawyers under an attorney's supervision from notifying medical or civil authorities that an individual has communicated to the attorney or those working under him an intent to commit suicide.

Facts: A lawyer from a publicly funded mental health group supervises law students and other non-professionals who handle intake calls at the center. An anonymous caller indicates that she intends to commit suicide and inquires as to her potential liability should she fail. The attorney asks:
(1) Can the lawyer-client relationship be established by a telephone request for legal information?
(2) Does the lawyer-client relationship extend to non-professional staff members?
(3) Is an attorney permitted or obligated to reveal to medical or civil authorities information calculated to prevent an individual from harming himself or another?
(4) If an attorney fails or refuses to disclose such information is he protected from tort liability by the attorney-client privilege?

Discussion: Although neither suicide nor attempted sucide is itself punishable under the criminal law of Massachusetts, both have in other respects been deemed to be malum in se and treated as unlawful and criminal. See, e. g., Hughes v. New England Newspaper Publishing Co., 312 Mass. 178 (1942); Commonwealth v. Mink, 123 Mass. 422 (1877). Therefore the attorney and his employees are clearly free to intervene when the attorney reasonably believes an individual is contemplating imminent suicide. See DR 4-101(C)(3) and (D). The same conclusion has been reached even where by statute suicide is not a criminal offense. N.Y. State Bar Association, Opinion No. 486 (June 26, 1978).
Further guidance is found in ABA Defense Function Standard 3.7(d) which was referred to as a source of guidance by the Supreme Judicial Court in Rule 3:22A. Standard 3.7(d) states that a lawyer must reveal the expressed intention of his client to commit a crime "if the contemplated crime is one which would seriously endanger the life or safety of any person and the lawyer believes such action on his part is necessary to prevent it." See also MBA Opinion 79-1.
Since the attorney is free to disclose a suicide threat to the authorities, it is unnecessary to discuss at length when the attorney-client privilege attaches or whether it covers non-professional staff. See, however, DR 4-101(D) and Foster v. Hall, 29 Mass. 89 (1831).
With respect to the question of any attorney's potential tort liability if he fails or refuses to disclose information of the nature set forth, such is a question of law and beyond the scope of this committee.
In view of this response it is unnecessary to answer questions (1) and (2).

Permission to publish granted by the Board of Delegates, 1979. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.