6. When does the duty to report override the duty of confidentiality

Four-step process: Future harm example

Is there a clear risk to an identifiable person or group of people?
Is there a risk of serious bodily harm of death?
Is the danger imminent?
Is there any other feasible way to prevent the potential injury?

How to answer each question

1. Is there a clear risk to an identifiable person or group of people?

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Is there evidence of long-range planning?; Has a method for effecting the specific attack been suggested?; Is there a prior history of violence or threats of violence?; Are the prior assaults or threats of violence similar to that which was planned?; If there is a history of violence, has the violence increased in severity?;Is the violence directed to an identifiable person or group of persons?
2. Is there a risk of serious bodily harm of death?

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The words “serious bodily harm” also include serious psychological harm, assuming that it substantially interferes with the health or well-being of the individual.

The disclosure of planned future crimes without an element of violence would be an insufficient reason to set aside solicitor‑client privilege because of fears for public safety.
3. Is the danger imminent?

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Depending on the seriousness and clarity of the threat, it will not always be necessary to impose a particular time limit on the risk.

A statement made in a fleeting fit of anger will usually be insufficient to disturb the solicitor‑client privilege.

imminence as a factor may be satisfied if a person makes a clear threat to kill someone that he vows to carry out three years hence when he is released from prison. If that threat is made with such chilling intensity and graphic detail that a reasonable bystander would be convinced that the killing would be carried out the threat could be imminent.
4. Is there any other feasible way to prevent the potential injury?

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Are there less intrusive methods of ensuring the safety of others?

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What do I do once I determine that disclosure is necessary?

The Model Code states that if a lawyer believes that they need to disclose client information to protect the safety of the public or an individual, they need to contact their local law society for ethical advice.

Limit Disclosure

If, after exploring the above questions, you have determined that your duty to report something outweighs your obligation to keep client information private, you should only disclose as much information needed to address the future harm.¹

Example of limiting disclosure: You have a document which indicates that there is an imminent risk of serious bodily harm or death to an identifiable person or group. This document also contains information about your client committing fraud and counterfeiting or the sale of stolen goods. The information that is unrelated to the imminent risk of serious bodily harm or death to an identifiable person or group should be redacted.

Documentation

The Model Code states that if the lawyer has disclosed client information to protect the safety of the public or an individual, they should document the following as soon as possible:

the date and time of the communication in which the disclosure is made;
the grounds in support of the lawyer’s decision to communicate the information, including the harm intended to be prevented, the identity of the person who prompted communication of the information as well as the identity of the person or group of persons exposed to the harm; and
the content of the communication, the method of communication used and the identity of the person to whom the communication was made.

Law Series

6. When does the duty to report override the duty of confidentiality

Four-step process: Future harm example

How to answer each question

Learn More:

What do I do once I determine that disclosure is necessary?

Limit Disclosure

Documentation

Learn More:

What are the other scenarios in which I can disclose confidential information?

Learn More: