Imagine losing your gun rights because your attorney violated attorney-client privilege to report you to police because he/she believes that your carry license makes you “dangerous.” How would that sit with you?
Just such a scenario played out in a recent legal ethics (no, that’s not a contradiction in terms) course in Mississippi. And experienced attorneys failed miserably in handling the hypothetical scenario in an ethical manor.
Attorney Rebecca Kathryn Jude and Dr. Chauncey M. DePree, Jr. wrote about the anti-gun bigotry displayed by these juris doctors at The Federalist:
If your lawyer believes that having a firearm license defines you as dangerous, you may be at risk of losing your Second Amendment rights and even your freedom. You may not know about his belief or recognize the risk until it is too late.
I can almost hear you saying, “My attorney is my advocate. What are you talking about? That could never happen!” You are wrong.
Lawyers are required to attend continuing legal education. During a recent ethics seminar, “The ‘Perfect’ Match: Selecting Clients for Successful Representation (Ethics),” Adam Kilgore, general counsel for the Mississippi Bar, offered the following hypothetical to a group of experienced civil and criminal lawyers.
A man has been fired from his job. He is upset. He hires you as his attorney. You are of the opinion he has an excellent case and file a complaint on his behalf. You later discover he possesses a permit to carry a firearm. He also has a so-called enhanced carry license. While his case is wending through the courts, your client goes to a public area outside his former workplace. He displays signs that say he has been wrongfully fired. The man has no history of criminal activity, violence, or threatening anyone.
The instructor asked the class what actions, if any, a lawyer should take.
With zero history of violence and a concealed carry license, most dispassionate people would say that the person in question would be at a negligible risk of committing a serious crime. Yet that’s not how these experienced attorneys reacted.
While I was forming an answer, many lawyers immediately said they would terminate the attorney-client relationship and contact law enforcement to report their client was potentially dangerous. The only reason offered was his firearm permits.
Remember, the hypothetical man had done nothing wrong in the scenario, yet many of the attorneys present would drop him as a client and contact law enforcement…simply because the upset person had permits that identified him as a good guy gun owner. Unbelievable, right?
The Federalist piece authors agree.
I have to admit, I was flabbergasted, for several reasons. First, I live in Mississippi, which is among the reddest of the red states. Second, the attorneys—let me call them gun-phobic—were proposing to violate the attorney-client privilege, which establishes one of the most sacrosanct confidential relationships. (American Bar Association “Rule of Professional Conduct” 1.6). As with most things, there are exceptions. They generally pertain to a client who is about to commit a criminal act or engage in fraudulent behavior.
The gun-adverse lawyers who failed to successfully navigate the scenario tried to weasel out of the attorney-client privilege by claiming exigent circumstances.
The lawyers who proposed to call the police cited ABA Rule 1.6 (b)(1). It states “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: … to prevent reasonably certain death or substantial bodily harm.”
Of course, exigent circumstances must meet the reasonable person standard. In other words, “What would a reasonable and prudent person have done in the same situation knowing what the defendant knows.”
A reasonable and prudent person does not assume that just because someone is a law-abiding gun owner that they are a danger to the community. In fact, just the opposite.
But that didn’t stop these attorneys.
Gun-phobic attorneys focused on the fact the client owned a gun and had firearm permits. In their opinion, that was enough to label him as reasonably certain to cause death or serious bodily harm and report him to the police.
The author concludes with this:
The adverse consequences have just begun. After being fired by an attorney, reported to the police as likely to injure or kill, arrested and held for psychiatric evaluation, what would happen to the client’s lawsuit? He would face the almost insurmountable burden of finding a new lawyer. How many attorneys would accept a case where a client has been fired by his previous attorney and arrested based on his attorney’s opinion that he is dangerous?
Congress may pass laws to limit our ability to possess firearms. Courts may interpret existing laws to limit our ability to possess firearms. They are obvious threats. What we don’t expect is the insidious, hidden threat from an attorney who does not believe in our Second Amendment rights and who takes action on the belief that he needs to protect the public from us.
Let’s face it: finding a good attorney requires far more due diligence than looking through the Yellow Pages (as if anyone does that anymore). If you hire a lawyer without learning more about them and their attitudes toward guns, you could find yourself in a worse position than if you had never hired an attorney to begin with.