For the Defense - Vol. 4, Issue 3 - 8

deliberate acts of self-harm.17 Given that on average
one in three American households contain a firearm,
asking clients about their access to and storage of
firearms is an important risk-assessment tool that can
be accomplished within a privileged conversation.
Advising a client to legally store his or her firearms
where they cannot be accessed by the client during
the duration of any engagement-related stress may
significantly reduce the risk of suicide death.
If the client is already in custody, there is a
statistically increased risk of suicide, which is
heightened where the following factors are present:
(1) the client's first time in custody, (2) the client's
first 24 hours in custody, or (3) the client is charged
with a crime of aggression.18 Given this time frame,
if an attorney is concerned about the suicidality of
a client is in custody, a risk assessment should be
made as soon as possible using QPR techniques as
discussed below. If the attorney reasonably believes
intervention is necessary, he or she should insist
that the client obtain a mental health assessment
immediately and take any other available steps
to reduce risk. For example, given that the
overwhelming majority of suicide deaths of those

8

For The Defense

l

Vol. 4, Issue 3

in custody occur by hanging, and the means for the
majority of those deaths are from bedding, removing
the means may reduce the absolute risk.19
Perhaps the most challenging question you can
face in representing a client who is experiencing
mental illness is whether the client's risk of self-harm
is so great that an immediate referral to treatment is
necessary to ensure the client's safety. Given changes
to the Model Rules of Ethics, as well as greater
knowledge within the psychological and medical
communities allowing for more accurate assessment
of risk, the answers to this question have shifted over
time.
A 2001 article by Carlisle & Weiss republished in
the New York Legal Ethics Reporter discussed the
ethical duties of an attorney to a suicidal client in the
context of then-proposed changes to the American
Bar Association's Model Rule of Professional Conduct
1.6.20 The then-current Model Rule 1.6(b) provided
for disclosure of otherwise privileged information "to
the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal
act that the lawyer believes is likely to result in
imminent death or substantial bodily harm." When


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For the Defense - Vol. 4, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 3

Contents
For the Defense - Vol. 4, Issue 3 - 1
For the Defense - Vol. 4, Issue 3 - 2
For the Defense - Vol. 4, Issue 3 - Contents
For the Defense - Vol. 4, Issue 3 - 4
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For the Defense - Vol. 4, Issue 3 - 6
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