Keeping Secrets That Harm Others: Medical Standards Illuminate Lawyer\u27s Dilemma

In routine cases, physician-patient and attorney-client confidentiality is uncontroversial. Confidentiality protects patients and clients, and is thought to enable the professional systems to work. Nevertheless, situations exist in which strict confidentiality may conflict with society\u27s interests. Both common law and statutory law in medical literature recognize a duty to warn identifiable third persons when a patient threatens to harm them. It is the thesis of this article that a parallel duty to warn third persons of impending harm should exist in the attorney-client sphere. The following discussion focuses on the comparison of the medical duty to disclose and the lawyer\u27s duty of confidentiality in unusual cases—those in which independent societal interests arguably outweigh the client\u27s interests in secrecy. A comparison of the professions highlights weaknesses in confidentiality\u27s traditional justifications and rationales. The article first presents an overview of the medical duty of disclosure to prevent harm to third persons. Next the traditional lawyer confidentiality rules are discussed. Then the article challenges lawyer confidentiality by analogy, logical extension of the special relationships doctrine, discussing troublesome exceptions to the lawyers\u27 confidentiality rule and comparing the medical duty to disclose. Finally the article concludes that in the case of harm to third persons, lawyers should be under an affirmative duty to disclose client confidences