This article deals with the topic of when a lawyer might be required to, or may choose to, disclose confidential client information because a client has indicated a risk to the safety of themselves or other people.

Every lawyer is keenly aware of their professional obligations of confidentiality to clients. These are set out in Rule 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (‘Rules’) and also as an implied term of retainer and an incidence of the fiduciary relationship between lawyer and client. A lawyer must hold all information about the affairs of clients in confidence indefinitely (subject to limited exceptions).

There will be times, however, when a lawyer’s strict professional duties may appear to conflict with wider safety or wellbeing concerns for a client or others.

A recent referral by the Coroner to New Zealand Law Society Te Kāhui Ture o Aotearoa highlights the ethical dilemma a lawyer can be faced with when this happens.

The Coroner referred their findings to the Law Society to enable any relevant lessons to be shared with the legal profession. This was a situation in which the deceased person had visited their lawyer the day prior to their death. The Coroner did not find in the particular circumstances that alerting someone else to the risk would have necessarily averted the death. However, the Coroner confirmed that the lawyer, if concerned about a serious risk to the health and safety of their client, could have shared those concerns with others, regardless of a client’s instruction not to do so. As emphasised by the Coroner, the basis for this type of disclosure is grounded in one of the exceptions to confidentiality obligations found in the Rules.

When a client’s behaviour or words indicate a potential risk to themselves or others, their lawyer is faced with making a decision about whether to disclose this. This can be a very challenging and distressing situation for any lawyer to find themselves in. The purpose of this article is to outline relevant considerations a lawyer may wish to consider and some practical suggestions to assist.

Exceptions to confidentiality

Confidentiality is a cornerstone of the lawyer-client relationship. The Rules, however, make provision for circumstances where a lawyer must or may disclose confidential information. Both categories of exceptions capture circumstances where a client has disclosed an intention to harm themselves or has made threats to others. For a full list of the exceptions refer to rules 8.2 and 8.3.¹

Mandatory disclosure

There are some situations in which a lawyer must disclose confidential client information, notwithstanding obligations of confidentiality.

These situations will likely be rare and are set out in r 8.2 including where:

The information relates to the anticipated or proposed commission of a crime that is punishable by imprisonment for 3 years or more (r 8.2(a)); or

The lawyer reasonably believes that the disclosure is necessary to prevent a serious risk to the health or safety of any person (r 8.2(b))

The exceptions inherently recognise that in some situations the public interest in protecting the client, another person, or the wider community from serious potential harm, overrides justifications for maintaining confidentiality.

Permitted disclosure

In addition, the Rules reflect that there will be instances in which a lawyer may wish to exercise their own personal judgment in favour of disclosing information that would otherwise be confidential.

A lawyer may disclose confidential information where:

• The client expressly or impliedly consents to the disclosure;
• The information relates to the anticipated commission of a crime or fraud (being an offence that doesn’t fall within the category that must be disclosed under r8.2);
• It is necessary to protect the interests of the client in circumstances where, due to incapacity the client is unable to effectively protect their own interests; or
• Disclosure is necessary for the lawyer to seek guidance from another lawyer in respect of the proper course of professional conduct (in such case that other lawyer is bound to maintain the confidence of the client).

How the exceptions might apply

Because of the nature of a lawyer’s work, they often are trusted with highly personal information about clients. This can inevitably lead to situations when a client shares information that raises concerns either for the client themselves or third parties. For example, a client might make threatening comments about someone they are in a heated dispute with or might disclose an intention to commit self-harm or express suicidal thoughts. When a client shares information of this type, the lawyer will need to assess the situation and make a judgment call about whether and who to disclose the risk to. Depending on the individual circumstances, the lawyer may be required to disclose information about their client or may make a personal decision to do so.

The first step will be for the lawyer to assess the information before them and decide whether any of the exceptions to confidentiality apply. The lawyer may ultimately decide that it is a case where they must disclose. Alternatively, the lawyer might conclude they are not required to disclose but it is a situation where they feel they should and the circumstances fall within the categories of permitted disclosure.

In cases where a lawyer may disclose, this will be a personal decision informed by the lawyer’s own professional judgment and personal views about where the balance lies between competing interests and obligations.

Assessing the situation – “serious risk” and “necessity”

To determine whether mandatory disclosure is required, the lawyer must consider whether the disclosure is necessary to prevent a serious risk to the health or safety of any person.

This analysis requires the lawyer to consider a number of questions (many of which will overlap). It may be helpful for the lawyer to ask themselves:

1. What is the specific risk here? – what is the information in front of me indicating that risk (including what are the specific words used by the client, what is their demeanour, what do I know about their personal circumstances and past actions)?
2. What is the nature of the risk? – has an intention to commit a future criminal offence imprisonable by 3 years or more been clearly indicated? – on the information I have, would other lawyers consider this a ‘serious risk’?
3. Who is the risk to (e.g. is there an identified person subject to the risk or are the threats vague or general in nature)?
4. Is the contemplated disclosure “necessary” to lessen the risk? – what could happen if I don’t disclose? Who should I disclose to and how would disclosure to them lessen the identified risk?

Some assistance can be gained from considering how concepts such as ‘serious’ and ‘necessary’ have been approached in the context of disclosure under privacy legislation.²

For example, the Human Rights Review Tribunal has said that something is “necessary” if it was “needed or required in the circumstances, rather than merely desirable or expedient".³

To assist with assessing “seriousness” relevant factors will be:

• the likelihood of the risk or threat eventuating; and
• the severity of the consequences if it eventuates;
• the time at which the risk may be realised.⁴

Asking the questions at 1-4 above will help with assessing these factors to determine the seriousness of the risk.

Extent of disclosure

If a decision is made to disclose, it is important to identify the right person or agency to disclose to. This will be informed by considerations of necessity, as above – i.e. who is in the best position to assist with defusing or lessening the risk? This requirement is based in the Rules which provide that any disclosure “must only be to an appropriate person and only to the extent reasonably necessary for the required purpose” (r 8.3).

This means that in relation to anticipated criminal offending the disclosure should likely only be directed to the Police (or other responsible law enforcement agency, if applicable). However, the circumstances might be such that in an urgent situation the lawyer may be justified in disclosing to a person who is clearly in danger as the potential victim of offending.⁵

In relation to the risk of self-harm to a client, identifying to whom and what information to disclose can be more difficult. It will depend on the particular situation and include considerations as to the immediacy of the risk. The question to ask is who is in the best position to minimise the risk. In a crisis situation, the Police or Mental Health Crisis team would be the relevant persons to disclose to. In relation to concerns about clients on remand, the General Manager of the particular site or remand facility may be the first port of call to direct immediate concerns to or to ascertain who is best to speak to. In less ‘immediate’ but still serious situations, a GP, treating health professional or potentially a family member may be the relevant person. In the Coroner’s case referred to above, a family member fully apprised of the self-harm risk and who lived with the client was identified as a person to whom the lawyer might have disclosed to.

Situations when a lawyer may disclose confidential information

After making an initial assessment, a lawyer may determine they are not required to disclose but they may form the view that disclosure should be considered. In this case, the lawyer will need to carefully assess whether any of the exceptions in r 8.4 apply.

One of the relevant exceptions relates to anticipated or proposed criminal offending that does not fall within the more ‘serious’ category identified in the mandatory exception (i.e. is not punishable by three or more years imprisonment). It is important to note that in New Zealand there is no exception enabling or requiring a lawyer to disclose past criminal behaviour.

Again, if disclosing confidential information, the lawyer must identify who the appropriate person or agency to disclose to is, and only disclose information necessary for the purpose of defusing or minimising the risk.

Checklist if considering making a disclosure:

• Be clear about what the risk is. It can be useful to repeat back to the client what the lawyer understands they have been told – ask them directly for specifics, if possible. This will help the lawyer assess whether the risk is real and serious. It will also help to identify whether the risk is immediate e.g. if they have a specific plan, the lawyer may need to get immediate help).
• Consider whether in the circumstances it is appropriate to seek the client’s consent to specific disclosure and to get agreement on practical steps to lessen harm.
• Consider whether you need to seek support or advice on a confidential basis from another lawyer about what to do (see: r 8.4 (e)).
• Consider who the most appropriate person to disclose to is – depending on the circumstances, is it a close family member, GP, social worker, mental health crisis team or authority such as the Police?
• Limit the disclosure and information shared to what is strictly necessary to get help or prevent harm.
• Consider whether or when to advise the client that a disclosure has been made. There may be cases where this could in fact exacerbate the risk to the client or third party.
• Keep a clear file note/record of what the client said, what was discussed with the client, why the lawyer decided to take a particular course of action, and what specific disclosure was made, when and to whom. This will assist if later there is a complaint about disclosure or if the potential harm eventuates.
• Make sure to keep safe and look after personal wellbeing. Dealing with this type of situation can be distressing and take an emotional toll – getting support from colleagues or a counsellor can be of real benefit.

Useful resources

Here are some useful resources for people supporting others in a crisis situation:

Suicide: worried about someone? |
Mental Health Foundation

The Law Society’s website also contains a list of helplines that can be of assistance to clients in crisis or lawyers seeking support or guidance: NZLS | Helplines

If you need confidential professional guidance or support, a member of the Law Society’s National Friends Panel may be able to assist: NZLS | National Friends Panel. Alternatively, talking to a trusted senior colleague may assist and the Rules provide for this under the exception at r 8.4(e).

Looking after yourself is crucial and dealing with clients in distress can have a significant impact on our own wellbeing. Talking to a trained professional to get an independent perspective and support can be really helpful. The Law Society has partnered with Vitae to offer a free and confidential counselling service NZLS | Free Counselling service

1. See also: Webb, Dalziel and Cook Ethics, Professional Responsibility and the Lawyer, (3rd ed, LexisNexis 2016) at ch 8 and Matthew Palmer (ed) Professional Responsibility in New Zealand (online looseleaf ed, LexisNexis) at ch 21.1.
2. The Privacy Act 2020 contains an exception for disclosure of personal information where there is a serious threat of harm to public health or safety or the life or health of the individual concerned or another. Note however, the scope and threshold are different to the wording of the Rules.
3. See the Privacy Act decision Tan v Police [2016] NZHRRT 32, at [77], citing Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 57, at [18], the Tribunal stated that something was “necessary” if it was “needed or required in the circumstances, rather than merely desirable or expedient.
4. See by analogy in a privacy context: Case Note 279251 [2017] NZPrivCmr 4 (May 2017), The Privacy Commissioner has noted in looking at the “serious threat” exception in IPP 11(f)(ii) that agencies that rely on this exception must consider these factors.
5. See: Dal Pont Lawyers’ Professional Responsibility (5th ed) (2013, Thompson Reuters) at 347.