Academic journal article The University of Memphis Law Review

To Disclose or Not to Disclose, That Was the Question-Until Now: Tennessee's New Rule of Professional Conduct 1.6 Mandates Disclosure of Confidential Client Information to Prevent Physical Injury or Death to Third Parties

Academic journal article The University of Memphis Law Review

To Disclose or Not to Disclose, That Was the Question-Until Now: Tennessee's New Rule of Professional Conduct 1.6 Mandates Disclosure of Confidential Client Information to Prevent Physical Injury or Death to Third Parties

Article excerpt

I. INTRODUCTION

An attorney, specializing in estate planning, is retained by a client to draft a will and create a trust. During the course of the representation, the client discloses his HIV status to the attorney. The client also informs the attorney he does not want anyone to know this secret, especially his wife, since he would have to admit to his wife that he had an affair several years earlier. The attorney, troubled by this revelation, asks the client if he is engaging in sexual relations with his wife. The client responds that he is, but is not practicing safe sex, because to do so would raise questions about his fidelity. The attorney encourages the client to reveal his HIV status to his wife, but the client refuses to do so. What can and should the attorney do?1

Does the answer depend on whether or not it is a crime to transmit HIV to an unknowing third party? If it is not a crime, should the attorney be allowed to disclose the client's HIV status anyway? Is the urgency of disclosure determined in part by the length of time it takes to contract HIV? Should it be? What about the moral implications of non-disclosure?

Questions such as these are not easily answered. The solutions in part depend on the attorney's duty to warn. Within the context of this note, the duty to warn refers to an attorney's professional responsibility to notify a potential victim, and possibly even to take further steps by alerting the appropriate law enforcement authorities, when the attorney has learned of confidential information regarding events that are likely to result in physical harm or death to that victim. The attorney's duty to warn may create a dilemma at some point in his legal career. One study surveyed 776 attorneys and reported that sixty-seven of them found themselves deliberating whether to warn a third party at least once in their professional careers.2 Of those sixty-seven, twelve disclosed information to prevent bodily harm to third parties. Of those twelve, five attorneys reported no damage to the attorney-client relationship, and one reported a better relationship after the disclosure.4

The purposes of this note are to explore the history of an attorney's duty to warn, to examine the current status of the ethical rules and case law in Tennessee on the duty to warn, and to propose that Tennessee has greatly clarified the ethical guidelines for lawyers by mandating disclosure of confidential client information to save third parties from bodily harm or death. In addition to these main points, this note questions whether tort liability is an inappropriate consequence for breach of the duty to warn. Although there are no reported cases where a court has imposed liability against an attorney for his negligent failure to warn, Tennessee's adoption of the new disclosure requirement may pave the way for negligent failure to warn liability in situations such as the above hypothetical.

II. HISTORY OF THE DUTY OF CONFIDENTIALITY

This part of the note compares and contrasts the attorney-client privilege with the duty of confidentiality, discusses the general professional duty to warn, and examines several facets of the attorney's duty to warn under ethical rules and in tort law.

A. The Duty of Confidentiality Versus Attorney-Client Privilege

In order to understand the meaning of an attorney's duty of confidentiality, one must distinguish the duty from the attorney-client privilege. The attorney-client privilege is an evidentiary privilege that applies only to compelled testimony.5 Thus, the privilege is triggered when a person, acting under the subpoena power of the state, tries "to compel a lawyer or a party to the proceeding to disclose the confidential client information."6 The privilege belongs to the client, and the client can choose to waive the privilege if he so desires.7 States law determines the scope of privileged information. Tennessee requires the attorney and client to have established a relationship as "attorney" and "client," although litigation need not be impending or expected. …

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