May 2002 - Department of Public Advocacy

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by written request, or in an “emergency” by telephone. Id. at
(1). “The committee member to whom the request is directed
shall attempt to promptly furnish the requestor with a telephonic
answer and written informal letter opinion as to the
propriety of the act or course of conduct in question.” Id.
SCR 3.530 comes complete with protections. Section (3) of
the rule states that “… no attorney shall be disciplined for
any professional act on his part performed in compliance
with an opinion furnished to him on his petition [request],
provided his petition clearly, fairly, accurately and completely
states his contemplated professional act.”
Recently, I spoke with an Ethics Hotline Committee member
in Lexington, Kentucky, Mr. Robert Turley, Esq., about seeking
an informal opinion from an Ethics Hotline Committee
member. Mr. Turley advises that, when seeking advice and
protection under SCR 3.530 from the Ethics Hotline Committee
member, the lawyer should “begin with full disclosure of
the facts and circumstances of the situation.” Then, “if the
lawyer follows the advice [given, he or she receives protection]
in relation to the ethics implications.” The opinion rendered
in these circumstances is an informal opinion. It is not
published, and, in fact, it is “confidential” under SCR 3.530(7).
(SCR 3.530(2), (4), (5), and (6) outline the procedure publishing
formal ethics opinions and for challenging their publication.)
If you need to contact a Hotline Ethics Committee Member in
your area, you can call the Kentucky Bar Center in Frankfort
at (502) 564- 3795. The folks there will help you find a member
in your area. As Mr. Turley says: “The Supreme Court adopted
the rule in order to encourage lawyers who have questions
about a proposed action.” Mr. Turley also told me that these
confidential “Hotline responses get filed with the Executive
Director of the Kentucky Bar Association and the Chair of
the Ethics Committee.”
DPA Responses To Inquiries About Client Suicide Threats
Last fall, I spoke with several DPA lawyers about the subject
of client suicide threats. The following statement by the Public
Advocate, Ernie Lewis, sums up the consensus opinion
that I found:
I do believe it is the lawyer’s obligation and duty to
tell authorities when he/she has good reason to believe
that the client is suicidal. Often this comes in the
form of a simple statement by the client. In such situations
it is imperative to talk with the client about the
statement, and to let them know that you feel obligated
to let someone know about this so that an evaluation
can be done, so that a watch can be initiated,
and other steps taken. In fact, I view the communication
by the client as a cry for help. The client who
THE ADVOCATE Volume 24, No. 3 May 2002
does not communicate the intention frightens me more
than the one who does.
I agree that a lawyer has a heightened responsibility
when a child is involved. Children have more dramatic
mood swings. Their suicidal gestures can be
quite real and tragic in consequence, and intervention
is essential. At the same time, adult clients should not
be ignored, as they too may utter to their lawyer the
last statement about their intention.
How to judge when the client has gone so far as to
require letting someone know is difficult. I believe the
lawyer is always conducting a type of clinical assessment.
I think the lawyer develops over time the ability
to spot certain words and other behaviors that result
in a conclusion that the client is serious about intending
to commit suicide.
The last paragraph in Ernie Lewis’ statement gives us all a
moment of pause. Ernie Lewis and all the other DPA lawyers
who spoke with me about this subject would err on the side
of caution when this subject presents itself in a client meeting
or other setting. In Kentucky, we have the privilege and
responsibility to fine-tune the rheostat, think it through, and
help the client who intimates suicidal thoughts to their lawyer.
Some jurisdictions might require disclosure when the
lawyer encounters this serious situation. [See for instance
Virginia state “Opinion 560” (4/10/84).]
Conclusion
Our laws favor protection of the client when we have reasonable
fears about the client’s possible self-destructive behavior.
DPA tradition follows that line of thinking. Some of our
challenges in this area are to fight the temptation to turn the
light switch on or off with a difficult client and instead choose
to thoughtfully tune the rheostat by exercising our best judgement
while continuing to serve the most and needy client.
Thanks go to Ben Cowgill, KBA Chief Bar Counsel, Robert
Turley, KBA Ethics Hotline Committee Member, Ernie Lewis,
Dennis Stutsman, Rebecca Ballard DiLoreto, Tom Glover,
Steve Mirkin, Rob Riley, and Gail Robinson.
Tim Shull
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Tel: (502) 564-8006; Fax: (502) 564-7890
E-mail: tshull@mail.pa.state.ky.us
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