For the Defense - Vol. 4, Issue 3 - 11

for lawyers and other non-health professionals.
The C-SSRS is adaptable to different settings and
consists of six basic questions to assess suicide risk
and whether a person is at such a high risk of selfharm that they should be escorted to an emergency
mental health evaluation.27 The basic C-SSRS protocol
is found below:
The studies on the C-SSRS have shown a highcorrelation with risk for those people experiencing
active ideation with a concrete plan. It is an evidencebacked tool which provides an individualized
risk assessment. If a client is experiencing passive
ideation (e.g., "I don't want to exist"), but does not
have intention or a plan, their risk of self-harm is
significantly lower. The client who is experiencing
active ideation with a concrete plan and steps toward
effectuating that plan in the last three months
is much closer to the standard articulated in the
model rule--reasonable certainty that intervention is
necessary.
Model Rule of Professional Conduct 1.14 regarding
representing a Client with Diminished Capacity
provides protection to the attorney who feels
disclosure is necessary to prevent substantial physical
harm to the client. MRPC 1.14(b) provides that when
a lawyer believes a client is suffering diminished
capacity and at risk of substantial physical harm, "the
lawyer may take reasonably necessary protective
action, including consulting with individuals or
entities that have the ability to take action to protect
the client and, in appropriate cases, seeking the
appointment of a guardian ad litem, conservator, or
guardian." Disclosure is limited to that information
which is reasonably necessary to protect the client's
interests. For example, to assist a client in obtaining
treatment, an attorney does not need to and
therefore should not disclose the purpose for which
the client was seeing the attorney. The attorney
should only disclose the symptoms which indicated
to the attorney that treatment was reasonably
necessary to prevent substantial harm to the client.
Ultimately, the decision whether to disclose is
a deeply personal one, dependent on the unique
relationship between each client and attorney. My
hope is that the information here will empower some
of you to discuss treatment options with your client
in a way in which helps your client assess the risks
and benefits of and access to mental health services.
Voluntarily seeking treatment is especially in the
best interest of a client in Pennsylvania, given that
an involuntary assessment brings with it questions of

capacity. It is likely that if the client's attorney has
concerns, others who are close with the client may
feel similarly; it may therefore be appropriate to
counsel the client that if they do not voluntarily
seek treatment that they are accepting the risk
that someone else in their life seeks an involuntary
assessment.
It is also important to reiterate that nothing in
the Model Rules compels the attorney to disclose:
the phrasing of the Model Rules protects attorneys
who reasonably believe their invention is necessary
but does not require disclosure. The choice is
within the discretion of the attorney. Those
attorneys who believe their client is reasonably
certain to attempt or complete suicide without
intervention, should feel comfortable disclosing
information to the extent necessary to obtain help
for their client, knowing that they are protected
under the relevant rules of professional conduct.

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About the Author
Stephanie K. Benecchi
is a partner in the
Litigation Department of
Montgomery McCracken
Walker and Rhoads LLP.
Stephanie's practice focuses
on commercial litigation,
white collar defense,
and government investigations. Stephanie has
experience with litigation matters at all stages,
from pre-suit investigations through resolution
and settlement.
Stephanie has represented senior executives
in the health care industry in conjunction
with government investigations and has
experience with investigations focusing on
labeling and monitoring of medical devices
as well as pharmaceutical sales practices. She
has defended clients against False Claims Act
litigation. Stephanie also has experience in
counseling clients regarding criminal tax issues.

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