Preventing Death or Bodily Harm

Rule 1.6(b)(1) is the first of the harm-prevention exceptions, and the easiest to defend. It lets a lawyer reveal information relating to the representation, to the extent the lawyer reasonably believes necessary, to prevent reasonably certain death or substantial bodily harm.¹ The lead-in already supplies what every paragraph (b) exception shares, namely permission rather than duty and disclosure limited to what is necessary, so this subparagraph adds only a harm and a degree of likelihood. The financial-injury exceptions add further conditions, among them that the client have used the lawyer's services in furtherance of a crime or fraud;² paragraph (b)(1) imposes none of them. A death or a serious injury, unlike a financial loss, cannot be repaired afterward.

Three questions organize the exception. What kind of harm qualifies? How probable must it be? And does it still lie ahead of the lawyer, or has it already been done?

Death or Substantial Bodily Harm

The harm that qualifies is defined by what happens to a person's body. The text names death and substantial bodily harm and says nothing about who causes the danger, whether anyone is at fault, or what the client intends.³ The inquiry therefore turns on the seriousness of the injury the lawyer would prevent.

The paradigm case is a client who confides a plan for violence. When the plan is reasonably certain to cause death or substantial bodily harm, the lawyer may disclose it to law enforcement or to the person at risk, to the extent necessary to prevent the attack.⁴ That permission comes from Rule 1.6. Whether the same communication stays privileged in a proceeding is a separate question, taken up in the later subsection on privilege and confidentiality.

Despite that picture, (b)(1) is not a crime-prevention rule. Its text requires no crime by the client, and the contrast with paragraph (b)(2) makes the point: (b)(2) is expressly limited to preventing the client from committing a crime or fraud, and (b)(1) is not.⁵ A death caused by carelessness is as permanent as one caused by malice, and a test built on the client's criminality would keep lawyers silent about accidents and negligence that threaten lives, although a timely warning would do as much good there.

The word substantial keeps minor injuries out. The exceptions are narrow departures from a duty of confidentiality that remains robust,⁶ and only a serious threat justifies departing from it; a bruise or a sprain does not. Death needs no adjective. The drafting choice stands out against the Code-era rule DR 4-101(C)(3), which allowed disclosure of a client's intention to commit any crime. A footnote in Purcell v. District Attorney described the rule then proposed in Massachusetts, which would have permitted disclosure of an intended crime only when it threatened substantial consequences: death, substantial bodily harm, or substantial financial injury.⁷ The Model Rule's text separates the categories further. It confines (b)(1) to death and bodily harm and handles threatened financial harm in other paragraphs, each with conditions of its own.⁸

States do not all draw the trigger the same way. As one secondary source describes them, Iowa mandates disclosure when the threat of death or serious bodily harm is imminent, whatever the source of the threat, while South Dakota permits, but does not mandate, disclosure to prevent imminent death or substantial bodily harm, and only when the harm will result from the client's criminal act.⁹ The Model Rule's text says nothing about the source of the danger, so on that question it sits with Iowa, though it permits disclosure where Iowa requires it. The word imminent appears in both state descriptions but not in the text of (b)(1). A fact pattern that supplies a danger from an accident or ordinary negligence should therefore prompt a check on whether the jurisdiction ties the permission to a client's crime, because the water-contamination hypothetical comes out differently under a crime-limited version.

Reasonably Certain Standard

The likelihood element sits between mere possibility and absolute certainty. Rule 1.6(b)(1) permits disclosure only to prevent death or substantial bodily harm that is reasonably certain to occur.¹¹ A possibility is too little, because nearly every confidence carries some conceivable risk to someone, and a possibility standard would turn the exception into a general license to disclose. Absolute certainty is too much, because the harm lies in the future and a lawyer who waited for proof would often learn the answer only after prevention had become impossible.

The lead-in adds a second layer of reasonableness: the disclosure must go no further than the lawyer reasonably believes necessary.¹² A court tests that belief objectively, in light of the surrounding circumstances, as the decision discussed below makes explicit. Measuring the belief against reasonable certainty, rather than against proof or suspicion, guards against two opposite errors. A lawyer who must be sure will wait for the confirming fact, and here the confirming fact is often the harm itself. A lawyer who may act on a hunch will override the duty of confidentiality on a passing worry.

The current text replaced earlier language. The earlier version permitted disclosure to prevent the client from committing a criminal act that the lawyer believed was likely to result in imminent death or substantial bodily harm.¹³ That wording contained a client crime, a timing requirement, and a measure of likelihood. The text of (b)(1) as it now reads contains none of the three and asks whether the harm is reasonably certain. An answer on the current Rule should state the standard as reasonable certainty and attribute likely, imminent, and the client-crime limit to the earlier text, or to a state version that kept them.

The move from certainty about a client's intent to reasonable belief about a threat is itself familiar. The Massachusetts proposal noted in Purcell would have based disclosure on the lawyer's reasonable belief of the likely existence of the threat rather than, as under DR 4-101(C)(3), on a known intention of the client.¹⁴

McClure v. Thompson is a rare decision that reviews a lawyer's belief under this exception, and the Ninth Circuit observed that remarkably little case law addresses how to judge it.¹⁵ Two cautions come first. The client there claimed ineffective assistance after his lawyer, Mecca, disclosed confidences, so the Rule served as a benchmark for the lawyer's performance: the question was whether the disclosure violated the duty of confidentiality in a way that made Mecca's assistance constitutionally ineffective.¹⁶ And the court applied the earlier wording, a criminal act likely to result in imminent death or substantial bodily harm.¹⁷ The case shows how a court evaluates the belief, but its vocabulary belongs to the older rule.

The lawyer's information was thin. Mecca had represented McClure for three days, meeting him seven times and speaking with him by telephone many times, when he made the disclosure.¹⁸ His notes record that after McClure drew a map, he “felt in my own mind that the children were dead, but, of course, I wasn't sure.” He testified that when he had his secretary place the anonymous call, he thought there was a “possibility,” but not a “strong possibility,” that the children were alive.¹⁹ Mecca also tried to make a deal with the State in return for the information, and his testimony, which the district court regarded as highly credible, repeatedly referred to his concern that McClure's kidnapping charges could become murder charges if the children were allowed to die.²⁰

The majority rejected McClure's argument that a lawyer needs a “firm factual basis,” a requirement borrowed from cases on the separate exception for intended client perjury. The professional responsibility code asks only whether the lawyer “reasonably believes” disclosure necessary, so the court held that the guiding rule is objective reasonableness in light of the surrounding circumstances.²¹ Taking as true the district court's findings about what McClure said and did, and what Mecca did and why, the court concluded that Mecca disclosed reasonably believing it necessary to prevent a criminal act he believed likely to result in imminent death or substantial bodily harm. Mecca therefore did not violate the duty of confidentiality in a way that made his assistance constitutionally ineffective.²² The court called the case close even after giving the state and district courts the deference due them. It said the choices of McClure's counsel gave it significant pause and that, were it deciding the question as an original matter, it might decide it differently.²³ The holding therefore marks an outer edge of reasonableness.

The dissent would have required a firm factual basis. If a lawyer needs one before disclosing intended perjury, it reasoned, a comparable showing should be required before disclosing that a client will commit murder, where the stakes are substantially higher and the risk of error greater.²⁴ It also proposed factors for the reasonableness calculus: how much information the lawyer had suggesting that a crime would be committed, how much investigation the lawyer did to resolve doubts, and how convinced the lawyer was. Applying them, it concluded that Mecca did not engage in even a minimal level of investigation before disclosing.²⁵

The same facts supported opposite inferences. After Mecca advised McClure that they were obligated to disclose if there was any possibility the children were alive, McClure did not respond. The dissent called an inference of life from that silence illogical and said a reasonable person would more likely infer that no such possibility existed, since McClure had just been told that disclosure was required if there was.²⁶ The deal Mecca sought from the State cuts both ways as well. The district court credited his testimony tying it to a fear that the children might die, while the dissent asked why a lawyer who strongly believed the children were alive but dying would keep their lives at risk by first trying to strike a deal for his client.²⁷ The opinions part over whether a firm factual basis should be required and over what silence and deal-making showed. A good essay on this standard therefore reasons from what the lawyer knew, what the lawyer asked, and what inferences the facts allowed.

What separates the two clients is the content of the information each lawyer held. The second lawyer knew of means and a time, and confirmed intent by asking, which is the step the McClure dissent found missing.

Future Harm, Not Past Acts

The purpose clause of Rule 1.6(b)(1) does the work here: a lawyer may reveal information only “to prevent reasonably certain death or substantial bodily harm.”²⁹ Prevention looks forward. A harm that has already happened cannot be prevented, so a disclosure that would merely report or expose a finished injury serves no purpose the exception recognizes. The exception reaches harm that still lies ahead and that disclosure could still avert.

A confession of past wrongdoing therefore stays protected. The criminal defendant who admits earlier misconduct to the lawyer may be assured that the information remains confidential, subject to incursion only if the defendant later introduces false evidence or testimony to a tribunal.³⁰ That incursion depends on new conduct by the client, so the confession itself never opens the door. Disclosure might bring a victim's family closure or help a prosecution, but neither benefit is the prevention of death or bodily harm that the text names.

The forward-looking logic is old. Nix v. Whiteside noted that Canon 37, adopted in 1928, explicitly acknowledged as an exception to the duty of confidentiality a client's announced intention to commit a crime.³¹ An announced intention concerns what the client has yet to do, so a lawyer who learns of it has both time to act and something to prevent. The Canon reached further than (b)(1) in one respect, since it covered an intended crime of any kind and not only one threatening death or bodily harm. It shares the feature that matters here, because it speaks of an intention and says nothing of completed acts.

McClure v. Thompson tests how closely the line follows preventability, because the underlying crime there was complete and the court still treated the exception as available. The lawyer disclosed the location of the missing children after the kidnapping was finished. The court nonetheless held that where an attorney's or a client's omission to act could result in death or substantial bodily harm constituting a separate and more severe crime than the one already committed, the exception may be triggered.³² The harm the exception looked to was the children's death, an event that had not yet occurred if they were alive and that revealing their location might avert. A footnote marks the limit of that reasoning. The client had not told his lawyer of an impending murder; the criminal acts were already completed, and the only question was whether the alleged victims had died or were alive at the time of the disclosure.³³

Two features keep McClure in proportion. Its reasoning rests on a continuing, preventable harm, so it offers no support for revealing a completed crime whose consequences are over, such as the location of the undiscovered body in the scene above. The court also applied the earlier wording, with its references to imminence and to a separate and more severe crime, so under the current text the corresponding questions are whether the worse harm is reasonably certain and whether the lawyer reasonably believed disclosure necessary to prevent it.³⁴

Set side by side, the undiscovered-body scene and McClure share nearly every fact: a serious completed crime, a lawyer who learns where victims are, and no threat announced by the client. They differ on one point, whether the harm was still open. Where the victim's fate was already sealed, nothing remained for disclosure to affect, and silence is the compliant course. Where the children's fate was unresolved and revealing their location might change it, the harm lay ahead, and the exception could apply.

The second step carries the most weight, because a completed crime invites two opposite mistakes. A student who stops at the observation that the crime is over will miss the continuing harm in a McClure-type pattern, and a student who is moved by the gravity of a past crime will treat it as a ground for disclosure, although the exception turns on what can still be prevented. Everything in this subsection concerns the ethics duty of confidentiality. Whether the same communication also remains protected by the attorney-client privilege in a proceeding is a separate question, taken up in the later subsection on limits and related rules.