Ethically Speaking

JurisdictionWyoming,United States
CitationVol. 30 No. 1 Pg. 2
Publication year2007
Wyoming Bar Journal

Vol. 30, No. 1 #2 (February 2007). ETHICALLY SPEAKING


February 2007/Vol. 30, No. 1

An Attorney's Duty to Warn(fn1)
By John M. Burman

Last issue's column was entitled: "The Disclosure of Confidential Information Under the New Wyoming Rules of Professional Conduct."(fn2) While it focused primarily on attorneys' ethical duties to disclose, or when they ethically may disclose confidential information, it addressed some of their legal obligations, namely the duties to report child abuse and abuse of a vulnerable adult.(fn3) The column did not, however, discuss in detail the issue of whether a lawyer has a tort duty to warn another of impending physical harm, noting only that "[w]hether a lawyer has a legal duty is an issue unto itself, which will be discussed more fully in a later column."(fn4) This is that column.

It goes without saying. Attorneys have both ethical and legal duties. While often identical, those duties are not always the same, with the result that an attorney's actions might be ethical (permitted by the Rules of Professional Conduct), but, at the same time, not meet the legal standard of a reasonable lawyer in Wyoming. A significant area where this potential exists is when a lawyer learns of a client's intent to cause physical harm to another. As discussed in the last column, a lawyer "may" ethically disclose a client's intent to commit a criminal act.(fn5) That "may" becomes a "shall" when the Rule permitting disclosure (1.6(b)(1)) is read together with the Rule (4.1(b)) requiring disclosure to a third party to avoid assisting a client to commit a criminal or fraudulent act.(fn6) Regardless of the general absence of an ethical duty to warn, however, the issue becomes when, if ever, does an attorney have a tort duty to warn another person?

Traditionally, a lawyer has owed a duty of confidentiality to each client, a duty which prevented the lawyer from disclosing information, even when such disclosure might significantly benefit others.(fn7) That prohibition was never absolute, however, and a developing body of tort law is imposing a legal duty on professionals, including lawyers, to warn third parties of intended harmful actions of patients or clients.

The Tarasoff Case

The Tarasoff(fn8) case is one whose name has become part of the everyday vocabulary of physicians, mental health professionals, and lawyers. "Tarasoff" has become synonymous with "duty to warn third persons about a patient's or a client's threats of physical harm." And while its name is familiar to most health professionals and lawyers, its facts and holding are often

misunderstood. Since it forms the basis of the so-called duty to warn, an accurate understanding of the case and its holding is critical to an understanding of the existence and extent of a duty to warn.

Prosenjit Poddar was a voluntary outpatient receiving mental health services at a University of California at Berkeley hospital.(fn9) He met with a therapist, a psychologist, seven times before discontinuing treatment. During the therapy, Poddar disclosed that he was obsessed with a young woman, not named, but readily identifiable as Tatiana Tarasoff. And while she may have had some feeling for him at one time, that had come to an end, at least in her mind. Poddar, however, remained obsessed. He told his therapist that he intended to kill the young woman when she returned from spending the summer in Brazil.

Poddar's therapist discussed the statement with his supervisor, and they decided to notify the campus police and request that the police detain Poddar for possible commitment. The police took Poddar into custody, but released him after he promised to stay away from Tatiana. Several weeks later, Tatiana returned home. No one told her or her parents of Poddar's threats. Shortly thereafter, Poddar killed her. Tatiana's parents sued the therapist and his supervisor (and others), alleging, inter alia, that they had had a duty to warn Tatiana of Poddar's threats, that they had failed to do so, and that failure had led to her death.

The trial court sustained the therapists' demurrer (a demurrer is analogous to a motion to dismiss) to the complaint, ruling that the therapists were not liable for Tatiana's death because it was caused by Poddar, a third party, with whom the therapists had a confidential relationship.(fn10) The case wended its way to the California Supreme Court, which ultimately ruled (the court issued two opinions, an initial decision and a decision on rehearing(fn11)) in favor of the plaintiffs. In its opinion on rehearing, the court said that a legally cognizable tort claim could be stated if the complaint alleged that:

[T]he therapists in fact determined that Poddar presented a serious danger of violence to Tatiana, or pursuant to the standards of their profession should have so determined, but nevertheless failed to exercise reasonable care

to protect her from that danger.(fn12)

The issue thus became whether the standards of the profession of psychology required the therapists to determine that Poddar presented a threat to Tatiana, and whether those standards required that the therapists take some action to protect Tatiana from that threat.(fn13) And under some circumstances, the obligation to take reasonable steps to protect the intended victim might include a duty to warn that person.(fn14) Given the procedural context of Tarasoff (an appeal from the granting of a demurrer), the California Supreme Court naturally did not need to and did not decide those issues. Rather, it said that a complaint that contained such allegations would state a cause of action against the therapists.

The key to the Tarasoff opinion, and the key to whether a therapist has a duty to warn, is how to determine when a therapist owes a duty to a third party. The court looked at two issues to answer the question. First, the court considered whether there was a "special relationship"


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