You be the Lawyer: Disadvantageous Disclosure


School has started again, so that means more law posts. Wheee!

This hypothetical comes from Professional Responsibility. As such, it's a moral/ethical question, rather than a strict "what do you think the law is here?" question.

Assume that you are a lawyer. You represent a young man who was involved in a car accident. You've been retained by his insurance company to handle his defense. Your client is at fault; of that there is no doubt. You're not even trying to go to court with this case, since your client would pretty clearly be found liable. So now you're trying to get the best settlement possible for him.

The plaintiff has been examined by his doctor, who estimates that his injuries amount to about $5,000 worth of damages. As a standard precaution you hire a doctor of your own to examine the plaintiff and make sure this assesment is accurate. Your doctor finds the same injuries as the plaintiff's doctor. Your doctor also finds something else: an aortic aneurysm. This is incredibly rare in a man of the plaintiff's age, and your doctor determines to a near-certainty that the aneurysm was caused by the accident. Fixing the aneurysm will be incredibly expensive; it will require an expert cardiac surgeon and will raise his medical bills to about $500,000. If the aneurysm is discovered by the plaintiff it will, without doubt, raise the cost of settlement commensurately. If the aneurysm goes uncorrected, it is very likely that it will kill the plaintiff within a few months.

Under the rules of evidence, you own the medical report produced by your doctor. Your doctor has not disclosed the aneurysm to the plaintiff, nor would he be expected to. The plaintiff's lawyer is young and inexperienced; he has neglected to request a copy of your doctor's medical report. If he did so, you would have to give it to him. Since he has not, you are under no obligation to disclose your discovery to him.

Your jurisdiction's code of professional responsibility do not require you to disclose in this instance. They do require you to provide the most zealous defense of your client possible. In fact, they specifically provide that disclosing confidential information, particularly if it damages the client's case, would violate your duty to your client.

If you disclose your doctor's medical report to the opposing counsel, you will almost certainly face disciplinary action from your state bar association. Your professional reputation will take a huge hit, it is likely that you will be removed from your firm, and it is possible that you will be disbarred. If you do not disclose, you will get a much better settlement for your client, and the plaintiff will probably be dead in a few months.

What would you, as a lawyer, do?


Hmmm... Somehow "accidentally" drop a hint to the plaintiff's lawer that your independent examination turned up something else? Either through words or actions during a face-to-face meeting I would want to make sure that the plaintiff had a chance to see this diagnosis. If the other lawyer doesn't catch on, I would then talk to the other doctor about contacting the plaintiff. And if all of that failed, I would contat them myself and be disbarred. Because I'm a softie like that.

Actually, I'm a little surprised that the doctor I've retained didn't tell the plaintiff himself. I know the original Hippocratic oath isn't exactly legally binding (or even universally accepted). But one section states, "To keep the good of the patient as the highest priority." Wouldn't that suggest the doctor should disclose to the plaintiff, no matter the civil implications?

The updated version of the oath ( includes a statement or two that also suggests this:
"I will apply, for the benefit of the sick, all measures [that] are required," and, "I will prevent disease whenever I can, for prevention is preferable to cure."

It's interesting; I had the exact reaction that you had when I first heard this hypothetical. Both of us skipped the relatively easy ethical and moral solution to the problem: Go to your client and convince him that, for any number of strategic, legal, and moral reasons, he should disclose the plaintiff's additional injuries. If you get your client to consent to a disclosure, there's no breach of confidentiality.

But if the client just agrees to disclose there's no big moral quandary. So assume he doesn't. My understanding is that the official way to handle this is to make some sort of noisy exit, to drop the client in a way that makes it clear that their immoral conduct is the reason you're leaving, and hope that this wakes up the plaintiff's counsel and gets them to make the right inquiries to get your doctor's report.

There's another interesting elephant in the room, though, which played a big role in the real-life case that inspired the hypothetical. Your client is the fellow who caused the accident, but the entity that selected you and pays your fees is the insurance company. Similarly, your doctor is probably being provided by the insurance company. As an ethical matter, your first duty is to the client, the doctor's duty to the patient. If the client wants you to disclose, you have to respect his wishes over those of the insurance company. But if you get a reputation for doing the right thing rather than the best thing for the insurance company, you'll find yourself not getting nearly as much insurance company business. Likewise, the insurance company doctor who discloses such things to plaintiffs is unlikely to be an insurance company doctor much longer.

You know, I never even considered trying to convince the client to do the right thing. I just assumed that people were bastards worldwide, and that I was supposed assume an island of morality in a sea of greed.

Then again, if the ability of a lawyer to continue doing business with insurance companies, or the employment of a doctor by an insurance company (as opposed to disbarment of either), played such a large role in the case, maybe we're somewhat justified in that pessimism. I would like to think that choosing between loss of your entire career & professional life and another person's actual life is a difficult moral choice, but that choosing whether to remain employed by Company X or have someone die is a no-brainer.

What's interesting about the real-life case, Spaulding v. Zimmerman, which occurred in Minnesota in 1962, was that it came to wide attention because the defendant's lawyer was a total scumbucket about things. He found out about the injury and took active steps to make sure not only that the plaintiff and his lawyers and doctors didn't find out, but also that his own client didn't find out. He also didn't tell the insurance company, on the theory that 1. the company wouldn't want him to disclose, so he didn't have to ask, and 2. telling the company might put them on the hook if things went to shit (which ended up happening).

The plaintiff found out about the injury a month later when he tried to enter the Army Reserves and the aneurysm was discovered during his physical. The plaintiff sued to void the settlement and re-open the case, and the courts allowed it on a technicallity (he was a minor when the agreement was made, which meant the settlement wasn't binding) but didn't find anything wrong with the defendant's lawyer's conduct, because he technically followed the ethical rules.

Since then, and partly inspired by this case, most states have reformed their rules of professional responsibility. Now 49 states have provisions allowing lawyers to breach confidentiality when failure to do so would create an imminent danger to human life. New York is the one hold out; the New York bar has refused to modify or amend its rules of professional responsibility since it grudgingly allowed African-Americans to become lawyers in the mid-50s.

The other interesting question is why everyone else, the various doctors and the plaintiff's lawyer, dropped the ball. The plaintiff's doctor didn't notice the aneurysm because he examined the plaintiff immediately after the accident, and the aneurysm wouldn't have appeared until several days later. The insurance company doctor didn't tell the plaintiff because he was busy and didn't prepare the report until several days after the examination, and moreover he assumed that giving the report to the defendant's lawyer would be the equivalent of telling the plaintiff, since the plaintiff could just get it through discovery.

So why didn't the plaintiff's lawyer request the document in discovery? First, Minnesota had only recently changed to rules of discovery that required more explicit document requests. Second, the plaintiff's lawyer was fresh out of law school, and wasn't too familiar with how things operated. But the main reason was that the plaintiff's lawyer had had the defendant's lawyer as a professor in law school. They knew each other and had a student-mentor relationship, and the plaintiff's lawyer trusted that his old professor would tell him if anything interesting turned up in the medical report. Realizing the trust the plaintiff's lawyer placed in him, the defense lawyer decided to exploit that trust to do everything he could within the law to make sure that noone found out about the aneurysm.

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This page contains a single entry by Zach published on September 6, 2006 2:03 PM.

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