Seamus Dubbs & The Limits of Confidentiality
Feb. 5, 2016 (Mimesis Law) — Attorney Seamus Dubbs faced a dilemma when a client decided to reveal a murder plot to him. He chose to contact authorities:
Howard Timothy Cofflin Jr. was already facing charges of harassment and making terroristic threats when he told his attorney about his plan to kill Pennsylvania State Police and his ex-girlfriend.
Cofflin now faces additional charges after his attorney told police about his client’s plot. That trip to the state police barracks in Loganville by York attorney Seamus Dubbs likely saved lives, police said.
No one could have doubted that the police would praise Dubbs’s decision to let them know his client was planning to kill them as well as his ex-girlfriend. Indeed, the vast majority of people in general would likely praise the decision and maybe even struggle to understand why it’s an issue at all. Few things are harder for non-lawyers to grasp than the concept of confidentiality.
People tend to see lawyers as caricatures, and the media feeds that. The image of the greedy lawyer doing all sorts of things sure to offend the sensibilities of ordinary people is an easy one to sell. The reality, however, is that the foundation of what lawyers do is their duty to their clients. That sometimes creates situations where what seems like the obvious moral thing to do ends up a real predicament for a lawyer. It’s almost impossible to describe to someone who hasn’t had to defend another human being’s life or freedom just how strong a lawyer’s sense of responsibility to clients really is. Most lawyers don’t agonize over revealing confidences because they’re sleazebags, but because they’re committed professionals who take their jobs seriously.
Dubbs didn’t just think about his duty, but contacted the bar ethics hotline as well:
Before Dubbs talked with police, he called the Pennsylvania Bar Association ethics hotline, where he was advised that speaking to police in this case would not violate the rules of conduct, according to reports from Maryland and Pennsylvania police.
To be clear, the attorneys who answer the ethics hotline phones provide only advice, not authorization, said Jeffrey Gingerich, a Pennsylvania Bar Association spokesman. That advice carries whatever weight the relevant reviewing authority gives it, he said.
Sure enough, Gingerich is right. Pennsylvania has mostly adopted the American Bar Association’s model rule 1.6, which deals with confidentiality. Pennsylvania’s version says that “[a] lawyer may reveal such information to the extent that the lawyer reasonably believes necessary . . . to prevent reasonably certain death or substantial bodily harm.” Although in someplaces, like Arizona, where the version of the rule says “[a] lawyer shall reveal such information,” he would be required to disclose his client’s plan, Dubbs had no obligation to do so.
Dubbs had a tough decision, and he asked for help. As Gingerich notes, however, the fact he received advice from the bar ethics hotline doesn’t guarantee he won’t be later disciplined for following that advice. Sure, it might later be persuasive in disciplinary proceedings that he asked the bar for advice, they gave it to him, and he followed it only to find himself subject to discipline, but regulatory and licensing authorities really hate limiting their options.
Admittedly, there’s some merit to that. What if it turns out the client was clearly just nuts, not a threat at all, and Dubbs revealed confidences and got his client arrested despite the fact he wasn’t reasonable in believing disclosure was necessary? That’s also true if the client was a crackpot, but an obviously harmless one, and death and substantial bodily harm weren’t reasonably certain.
As nice as it would be to fault the hotline for not insulating from discipline lawyers who follow its advice, it comes back to a lawyer’s duty to a client. A lawyer may not be forthcoming with the hotline, or might just be wrong about the facts. It’s surely frustrating to call for advice and not be able to rely on it as binding, but it probably has to be that way.
With one little exception, that’s essentially what a law professor quoted in the article said:
“Exceptions permit but don’t mandate a lawyer to make disclosures,” Haas said. “That’s what’s absolutely fascinating about this.”
For the exception to be valid, Haas said, Dubbs would have had to make sure that Cofflin could actually complete his plans.
“In order to invoke this exception, we need to make sure somebody isn’t just puffing about something,” Haas said.
It might be a minor point, but the “make sure” standard Hass discusses is probably more accurately “make reasonably sure,” if even that. Dubbs didn’t have to perform a substantial investigation in order to determine just how serious the client was. He didn’t have to meet an objective burden of proof. Did he reasonably believe disclosure was necessary to prevent reasonably certain death or substantial bodily harm? That doesn’t seem quite the same as being sure.
Regardless, it appears exceedingly unlikely that Dubbs’s client wasn’t pretty serious about his plan:
After Dubbs talked to police, Cofflin revealed more details of his plan to Baltimore County police. Cofflin told police he planned to kill his girlfriend and kill any police who tried to stop him, according to a Baltimore district court records. Cofflin also said he suspected his attorney was the one who tipped off police, documents state, and that he might also include him in his revenge plot.
No lawyer ever wants to be in Dubbs’ situation, and not just because he has a murderous former client who won’t shut up about his nefarious plans, blabbing first to Dubbs and then to the police, and who may currently be plotting Dubbs’s demise à la Cape Fear.
It’s hard to overstate how difficult Dubbs’ decision probably was. That Dubbs was confronted with a client’s potential murder plot and was likely permitted to disclose it under the rules but still chose to consult with the bar’s ethics hotline rather than immediately run to the police suggests he genuinely appreciates his duty to his clients.
Normally, the worst possible thing a lawyer can do is harm a client. Dubbs’ situation wasn’t normal, though, and he ultimately chose to go to the police, perhaps saving some lives in the process. Despite that, and even though his client is presently deciding whether to include him in his revenge plot, it may be something that continues to bother him for years to come.