法律英语：19 Duties of Confidentiality for Lawyers

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is duties of confidentiality⁴ for lawyers and psychologists. Nicholas wrote:

What sorts of things [are] a psychiatrist⁵ required to tell the police, if you tell the psychiatrist in confidence? What about a lawyer?

Nicholas’ question pits the professionals’ potential duties to protect victims against the professionals’ duty of confidentiality to his or her client. The short answer is that psychotherapists are required in many states to inform police when the client makes a credible⁶ threat of violence against an identifiable victim. There are almost no situations where a lawyer is required to contact police, but a lawyer may choose to notify police in order to protect against imminent⁷ bodily injury or death.

Under general principles of tort law, no one has a duty to protect people from the violent acts of others. However, in some limited situations, you can be held responsible for the acts of people with whom you have a special relationship. In the landmark⁸ case of Tarasoff v. Regents of University of California, the California Supreme⁹ Court held that the special relationship between a psychotherapist and a patient imposes on the therapist a duty to act reasonably to protect the foreseeable victims of a patient. In Tarasoff, a patient told his therapist that he intended to kill his girlfriend. The therapist detained the patient for a limited time, but then released him when he appeared rational. Nobody warned the girlfriend or her parents about the threat. Sadly, the patient killed his girlfriend. The court held that the University, as the therapist’s employer, had a duty to warn the foreseeable victim of a credible threat and take necessary steps to protect the victim. This included notifying the police.

Several states have followed this modern trend, including Nebraska, Missouri, New Jersey¹⁰, and Colorado. Some courts have limited this rule to cases where the patient makes a threat against a specific person. So, many courts have held that a therapist is not required to call the police when the patient makes a generalized threat of violence against society. These courts reasoned that when a threat is generalized, there is no meaningful way for the therapist to warn society at large. On the other hand, when the threat is against a specific person, the therapist can take effective steps to protect the individual.

This obligation to call the police seems to contradict a psychotherapist's normal duty of confidentiality. However, courts and state legislatures have recognized that confidentiality must yield to the duty to protect innocent third parties from violence. Therapists' obligations to their patients require them to keep information in confidence unless disclosure is necessary to avert¹¹ danger to others, and even then therapists must do so discreetly¹² and in a fashion that would preserve the privacy of patients to the fullest extent compatible with the prevention of the threatened danger.

The duty of confidentiality that lawyers owe their clients is stronger. Under the American Bar Association’s Model Rules of Professional Conduct, which many states have adopted by statute¹³, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized¹⁴ in order to carry out the representation or the disclosure is permitted” by certain exceptions. Please note that this duty of confidentiality is different than the attorney-client privilege, which is an evidentiary privilege. It works to allow an attorney to remain silent when asked about confidential³ communications with a client. The attorney-client privilege protects an attorney from being forced to speak, while the duty of confidentiality prevents an attorney from voluntarily disclosing client communications.

A lawyer’s duty of confidentiality applies to prospective¹⁵ clients, current clients, former clients and even dead clients in most situations. This duty also applies to a lawyer’s support staff, including secretaries, paralegals, and other lawyers working with the lawyer.

There are exceptions to this rule. Under the ABA Rules, a lawyer may disclose information related to representing a client in some situations:

in order to prevent reasonably certain death or substantial bodily harm
to prevent the client from committing a crime or fraud that the lawyer believes
will cause substantial injury to the financial interests or property of another
to ask another lawyer for advice about complying with these Rules
to defend himself or herself if there is a controversy¹⁶ with the client
to comply with other law or a court order
Note that the rule does not state that an attorney must disclose client confidences in any of the above situations. So, if the patient in the Tarasoff case had told his lawyer that he planned to kill his girlfriend, the lawyer would not have the same duty to tell the police that the therapist had. One rationale for this is that a therapist has a very different special relationship with his patient. A therapist is charged with the mental health of his patients and is trained to identify when his patient’s threats are credible. A lawyer has no special mental health training, and cannot know when his client is simply blowing off steam or actually intends to kill.

One main exception to a lawyer’s duty of confidentiality is under the Sarbanes–Oxley Act, which implements¹⁷ enhanced standards for all U.S. public company boards, management, and public accounting¹⁸ firms. Under the Act, lawyers who “appear and practice” before the SEC must report certain violations¹⁹ up the chain of command within the company. For example, if a lawyer represents a corporation, and a junior vice-president is doing something illegal under the Act, then the lawyer might have a duty to report it to a senior vice-president.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful²⁰ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to。。。or call them in to the voice-mail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

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1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 confidential   

adj.秘（机）密的，表示信任的，担任机密工作的

参考例句：

• He refused to allow his secretary to handle confidential letters.他不让秘书处理机密文件。
• We have a confidential exchange of views.我们推心置腹地交换意见。

4 confidentiality   

n.秘而不宣，保密

参考例句：

• They signed a confidentiality agreement. 他们签署了一份保守机密的协议。
• Cryptography is the foundation of supporting authentication, integrality and confidentiality. 而密码学是支持认证、完整性和机密性机制的基础。

5 psychiatrist   

n.精神病专家；精神病医师

参考例句：

• He went to a psychiatrist about his compulsive gambling.他去看精神科医生治疗不能自拔的赌瘾。
• The psychiatrist corrected him gently.精神病医师彬彬有礼地纠正他。

6 credible   

adj.可信任的，可靠的

参考例句：

• The news report is hardly credible.这则新闻报道令人难以置信。
• Is there a credible alternative to the nuclear deterrent?是否有可以取代核威慑力量的可靠办法？

7 imminent   

adj.即将发生的，临近的，逼近的

参考例句：

• The black clounds show that a storm is imminent.乌云预示暴风雨即将来临。
• The country is in imminent danger.国难当头。

8 landmark   

n.陆标，划时代的事，地界标

参考例句：

• The Russian Revolution represents a landmark in world history.俄国革命是世界历史上的一个里程碑。
• The tower was once a landmark for ships.这座塔曾是船只的陆标。

9 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

10 jersey   

n.运动衫

参考例句：

• He wears a cotton jersey when he plays football.他穿运动衫踢足球。
• They were dressed alike in blue jersey and knickers.他们穿着一致，都是蓝色的运动衫和灯笼短裤。

11 avert   

v.防止，避免；转移(目光、注意力等)

参考例句：

• He managed to avert suspicion.他设法避嫌。
• I would do what I could to avert it.我会尽力去避免发生这种情况。

12 discreetly   

ad.(言行)审慎地，慎重地

参考例句：

• He had only known the perennial widow, the discreetly expensive Frenchwoman. 他只知道她是个永远那么年轻的寡妇，一个很会讲排场的法国女人。
• Sensing that Lilian wanted to be alone with Celia, Andrew discreetly disappeared. 安德鲁觉得莉莲想同西莉亚单独谈些什么，有意避开了。

13 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

14 authorized   

a.委任的，许可的

参考例句：

• An administrative order is valid if authorized by a statute.如果一个行政命令得到一个法规的认可那么这个命令就是有效的。

15 prospective   

adj.预期的，未来的，前瞻性的

参考例句：

• The story should act as a warning to other prospective buyers.这篇报道应该对其他潜在的购买者起到警示作用。
• They have all these great activities for prospective freshmen.这会举办各种各样的活动来招待未来的新人。

16 controversy   

n.争论，辩论，争吵

参考例句：

• That is a fact beyond controversy.那是一个无可争论的事实。
• We ran the risk of becoming the butt of every controversy.我们要冒使自己在所有的纷争中都成为众矢之的的风险。

17 implements   

n.工具( implement的名词复数 )；家具；手段；[法律]履行（契约等）v.实现( implement的第三人称单数 )；执行；贯彻；使生效

参考例句：

• Primitive man hunted wild animals with crude stone implements. 原始社会的人用粗糙的石器猎取野兽。 来自《现代汉英综合大词典》
• They ordered quantities of farm implements. 他们订购了大量农具。 来自《现代汉英综合大词典》

18 accounting   

n.会计，会计学，借贷对照表

参考例句：

• A job fell vacant in the accounting department.财会部出现了一个空缺。
• There's an accounting error in this entry.这笔账目里有差错。

19 violations   

违反( violation的名词复数 )； 冒犯； 违反（行为、事例）； 强奸

参考例句：

• This is one of the commonest traffic violations. 这是常见的违反交通规则之例。
• These violations of the code must cease forthwith. 这些违犯法规的行为必须立即停止。

20 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。