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  • InsideTrack
  • March 16, 2011

    Ethical dilemmas: When to cross the line of confidentiality. Is your client's threat credible?

    March 16, 2011 – Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by State Bar’s ethics counsel Timothy Pierce, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    Question

    I represent a man charged with sexual assault of a child and he has steadfastly maintained his innocence. However, as trial approaches, he has become more depressed and agitated. I was just on the phone with him and he told me that the prosecutor was out to ruin his life for no reason, and that he was going to take him out at the next hearing. With that, he hung up the phone. What do I do?

    Answer

    If the lawyer believes that threat is credible, the lawyer must take steps to prevent the client’s threatened crime. Wisconsin lawyers have a mandatory duty to disclose information to the extent the lawyer reasonably believes necessary to prevent a client from committing a criminal or fraudulent act that is reasonably certain to result in substantial injury to the person or property of another. Disclosure in such situations can result in grave harm to clients, however, and when time and circumstances permit, the lawyer should take steps to ensure that disclosure is necessary. In this case, if the lawyer had taken whatever steps were available under the circumstances to determine whether the threat of violence to the prosecutor was credible, the lawyer would likely have to warn the prosecutor and /or appropriate courthouse personnel.

    References: SCR 20:1.6(b); Wisconsin Formal Ethics Opinion E-89-9, NACDL Formal Opinion No. 04-01.

    Previous questions:

    For more information, visit the Ethics webpage on WisBar.


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