Ask the Expert
Violence Against Attorneys and Judges: Protecting Yourself Before and
After a Threat
Harold J. Bursztajn, M.D.
James T. Hilliard, J.D
Dr. Harold J. Bursztajn, Associate Clinical Professor and Co-Director,
Program in Psychiatry and the Law, Harvard Medical School at the
Massachusetts Mental Health Center, practices both as a clinician
and as a forensic psychiatrist consulting locally and nationally
to attorneys and institutions. James T. Hilliard, Esq., Connor & Hilliard,
is counsel to the Massachusetts Psychiatric Society and Lecturer
in Psychiatry at Harvard Medical School. He consults to a variety
of clients, including hospitals and other institutions.
A gunman firing an automatic rifle in the 34th floor office of
a San Francisco Financial District highrise wounded at least seven people
at mid-afternoon Thursday before taking his own life... The shooting
occurred in the offices of the law firm Pettit and Martin at 101 California
Street. (San Francisco Chronicle, July 1, 1993, p. A-1) Sources said
authorities believe Ferri [the gunman], 55, had become convinced he was
about to lose the legal dispute involving the law firm, and claimed he
was being "cheated out of $300,000,"
one source said. (San Francisco Chronicle, July 2, 1993, p. A-1)
MOUNTAIN BROOK, Ala.--A federal appeals judge was killed by a mail
bomb that went off at his home Saturday afternoon and his wife
was seriously wounded, authorities said. (Atlanta Constitution,
December 17, 1989, p. A-1)
The Oklahoma City bombing raises anew fears of violent assaults against
authority figures and institutions. Were the shooting at the
law firm in San Francisco and the mail-bomb murders of an Alabama
judge and a Georgia attorney isolated incidents, or are attorneys
and judges facing an increased risk of violence?
Those were far from isolated incidents. When the federal judge was
murdered in Alabama in 1989, the U.S. Marshals Service reported
that there had been 331 threats against the federal judiciary
that year. In today's climate of hostility toward the law and
legal authority, there is a real possibility that an enraged
litigant may assault the representing attorney or opposing attorney,
or even a judge.
What kinds of threats against judges have occurred recently?
At least two cases arising from such threats have recently been litigated.
In a case that hinged on a psychotherapist's "duty to warn," a
Louisiana appeals court affirmed a jury's verdict that a psychiatrist
and a psychologist had not committed an actionable breach of confidentiality
by warning a judge and law enforcement officials that one of their
patients had made increasingly serious threats against the judge's
life. The judge had aroused the man's ire when she overturned a $1
million jury award the man had been granted for work-related injuries
and ordered a new trial. Meanwhile, the U.S. Sixth Circuit Court
held that a district court had properly admitted a psychotherapist's
testimony about a Michigan man's threats to kill an administrative
law judge who had denied him social security benefits for mental
disability. The trial court had convicted the man of threatening
the judge's life after the psychotherapist testified that the defendant,
in addition to describing previous violent acts he had committed,
had told her that he had waited outside the judge's office for two
days with the intention of killing him. Under Michigan law, a psychiatrist
has a duty to communicate such threats to the person threatened and
to the police.
What steps can I take to prevent a violent assault by a client?
The key to prevention is to identify high-risk cases, clients, and situations
so that you can take appropriate precautions. It is also important
to keep in mind that an attorney's duty to advocate zealously for
a client and to maintain confidentiality exists in a legal and ethical
context. When a client threatens either an attorney's life or the
life of a third party, such as an officer of the court or opposing
counsel, that context encourages, and by some interpretations in
specific instances (e.g., a threat against a federal official) mandates,
that the attorney take reasonable steps to warnthe intended victim(s).
What kinds of cases are considered high-risk?
Criminal cases, of course, especially those involving violent, revenge-motivated
crimes. By and large, domestic relations proceedings (divorce, child
custody, spousal or child abuse) are the most emotion-provoking legal
processes that people experience. Parents who are told by judges
that they will not be allowed to see their children over certain
holidays or spouses who are ordered to pay much more in alimony and/or
support than they believe they can pay often reach new and dangerous
levels of hostility. Their aggressive feelings may be taken out on
their own attorney, the spouse, the spouse's attorney, or the judge.
Bear in mind, too, that high-risk cases become even more high-risk when
additional risk factors are present in the litigant or in the situation.
What are some high-risk factors to look for in the litigant?
Be cautious with litigants (especially criminal defendants) who exhibit
one of a cluster of personality disorders that manifest themselves
in acting out rather than in avoidance and withdrawal. Among these
disorders, as defined in the DSM-IV, are the following:
-
Paranoid Personality Disorder: a pattern of distrust
and suspiciousness such that others' motives are interpreted as malevolent.
-
Antisocial Personality Disorder: a pattern of disregard
for, and violation of, the rights of others.
-
Borderline Personality Disorder: a pattern of instability
in interpersonal relationships, self-image, and affects, and marked
impulsivity.
-
Dependent Personality Disorder: a pattern of submissive
and clinging behavior related to an excessive need to be taken care
of. Paradoxically, people with this diagnosis may become violent
when they feel abandoned.
-
Narcissistic Personality Disorder: a pattern of
grandiosity, need for admiration, and lack of empathy.
-
Dissociative Identity Disorder (formerly Multiple
Personality Disorder): the presence of two or more
distinct identities or personality states that recurrently take control
of behavior. There is an inability to recall important personal information,
the extent of which is too great to be explained by ordinary forgetfulness.
Major mental illnesses such as untreated or partially treated Paranoid
Schizophrenia and Bipolar (Manic-Depressive) Disorder also
are associated with an increased risk of violence. Individuals who are
so severely depressed as to be psychotic may be outwardly functional
as they go through the motions of life, but quite delusional. When feeling
frightened and trapped, they may engage in acts of murder-suicide. Among
litigants with the diagnosis of Substance Abuse or Substance
Dependence, users of stimulants (e.g., cocaine, amphetamines,
steroids) are at especially high risk for becoming paranoid, covertly
delusional, and then suddenly violent. People with a Dual Diagnosis (e.g.,
Personality Disorder and Paranoid Schizophrenia; Personality Disorder
and Substance Abuse) are at particularly high risk, especially when there
is a clinical treatment failure. Individuals suffering from Erotomania,
who become obsessed with the person of the attorney or judge, are also
predisposed toward aggressive or intrusive acts.
Regardless of manifest traits, a past history of revenge and violence
increases the risk of future violence, as does a history of suicide
attempts, a family history of violence, or a tendency toward perfectionism.
Furthermore, the absence of manifest traits does not indicate an
absence of mental illness. A person who, to all appearances, functions
normally may be covertly psychotic or psychopathic. In a study of
individuals charged with murder who were diagnosed as psychotic in
court-ordered evaluations, nearly half had no history of psychiatric
hospitalization, suggesting that the psychosis had been misdiagnosed
or overlooked prior to the homicide. Psychotic depression in particular
has proved especially difficult for clinicians to recognize.
Psychiatrists certified by the American Board of Psychiatry and Neurology
as having "Added Qualifications in Forensic Psychiatry"
are best equipped to negotiate this treacherous terrain in which mental
illness may express itself in criminal violence. The assessment of dangerousness
is best undertaken by a forensic psychiatrist whose thinking is informed
by decision analysis, including prediction on the basis of conditional
probabilities. In addition, the evaluator who is psychoanalytically trained
can guard against the blind spots that come under the rubric of "countertransference."
What are some high-risk situations that can occur in legal proceedings?
Certain explosive situations can compound the risk associated with a
high-risk case and/or client. Some examples are: (1) A client feels
victimized by society. (2) A client sees any authority (including
government and the law) as the enemy. (3) A client falls behind in
paying legal fees, but still feels entitled to an attorney's services.
(4) A client has been inadequately prepared for the traumatic aspects
of litigation. (5) A client loses a case he or she expected to win.
(6) A client wins the case, but legal vindication does not bring
the psychological resolution the client desired. (7) When a legal
impasse is reached, the attorney offers to withdraw. The client,
feeling abandoned and helpless, becomes enraged.
People who focus on the justice system as their enemy may well have suffered
real injustice at some point in their lives. They then project their
fear and anger over that earlier experience onto the present situation.
This is a common form of paranoid thinking.
Can the threat of violence be difficult to recognize?
Like mental illness, a predisposition toward violence can be more or
less evident. Sometimes the threat is overt and explicit. In other
cases it is less obvious, but the experienced attorney still hears
a clear warning signal. The attorney's suspicions should be aroused,
for example, when a client asks for the attorney's home address or
the names and addresses of the opposing attorney, judge, or jurors.
There are also times when the threat is entirely covert or concealed.
In such instances, the attorney can undertake to refer the client
to a forensic psychiatrist experienced in consulting to attorneys
around issues of client management as well as the assessment and
prevention of violence.
What should I do when I get a case involving a heightened risk of client
violence?
You must decide whether you are willing to handle any particular case
or make an appropriate referral to an attorney experienced in such
cases. Life is never completely without risk, of course, and an attorney
who tried to take only risk-free cases would soon not be practicing
law. So there is no substitute for ongoing risk-assessment and client
management.
For example, forensic psychiatrists using both a psychoanalytic and a
decision-analytic perspective have developed a scheme for
"multidimensional assessment" of dangerousness, which balances
the probability of a violent act against the patient's competence (and
willingness) to inform the clinician or target of his or her intention
to commit such an act. This framework can be the basis of a comprehensive
client-management strategy that includes setting limits and recognizing
signs of impending violence.
Can I reduce the risk of violence by the way I approach clients and communicate
with them?
Don't encourage the client to have unrealistic expectations about the
outcome or to idealize you. Attorneys should do what wise physicians
do when they make clear to their patients that they cannot control
the uncertainties of nature. A most effective way of countering a
client's magical wish for perfect justice is to empathize with that
wish ("Wouldn't we all want perfect justice?") while retaining
and communicating a more realistic outlook. In this regard it can
be helpful to discuss the client's own agency, the attorney's agency,
and that of other participants in the litigation from a justice-system perspective.
This can help to diffuse feelings of revenge.
So attending to the client's expectations can help protect the attorney
against violence?
Not only against violence, but also against other forms of aggressive
retaliation such as nonpayment of bills, legal malpractice claims,
or false claims of impropriety or exploitation.
What if a threat is actually made against me or another attorney or judge?
Once an overt or implicit threat is made, we move from prevention to
post-vention. With the stakes thus raised, the assistance of a forensic
psychiatrist can be all the more crucial in assessing risks and helping
the attorney decide what actions need to be taken. Be assured, though,
that your duties as counsel do not extend to being a passive witness
to a crime in the making or to providing continued representation
for a client who is abusing or endangering you (provided that, in
terminating the relationship, you do so with the approval of the
court if your appearance has been entered and, when possible, with
a referral to another attorney).
When is discontinuing representation considered abandonment?
Once a case has been entered in court, you can withdraw only with the
approval of the court. If the case is not yet in litigation, you
can be held liable only if the client suffers demonstrable harm (e.g.,
having the Statute of Limitations run out) as a result of your alleged
neglect. An appropriate and timely referral can go far toward protecting
you from such liability. At the same time, it can discharge your
ethical responsibility to help the client obtain adequate representation.
Law and ethics aside, when someone who has previously suffered an injustice
(even in a long past incident unrelated to the case at hand) feels abandoned,
there is a potential for explosive rage. Therefore, if you decide
that you and a client (especially a potentially violent client) are
mismatched, your letter of termination can include an offer to refer
the client to another attorney. An exit interview can also help reduce
post-termination risk.
Do I have a duty to report a threat my client makes against a third party?
Although attorney-client privilege does not apply when a client communicates
to a lawyer his or her intention to commit a crime, lawyers are not
mandated to report such communication under either the federal statutes
or the Rules of Professional Conduct. Nor are they liable for damages
resulting from the client's criminal conduct. However, according
to the Federal Criminal Code, an attorney who hears a client threaten
a federal official may be considered a witness to a crime.
This exception to attorney-client privilege applies only to future crimes
when the attorney believes the client has the intent to commit such a
crime. The communication, if you choose to make it, should be limited
to only that information necessary for the authorities to respond appropriately.
A forensic psychiatric consultation can be especially valuable here,
since the psychiatrist can report the threat while you, the attorney,
continue to advocate for your client.
In some cases it may be useful to discuss with the client in advance
your intention to notify the authorities. This stratagem, used to
advantage by psychotherapists, can strengthen or restore the attorney-client
alliance, help the client deal constructively with the feelings that
precipitated the threat, and direct the client toward needed professional
help.
If a client publicly attacks my good name, do I have the right to breach
attorney-client privilege to defend myself?
If the client's aggression takes the form not of a threat of criminal
violence, but of slander or filing a malicious lawsuit, you may make
those disclosures necessary to defend your competence or integrity.
You should also consider bringing action for defamation. Failing
to act in defense of your reputation out of regard for confidentiality
may leave you open to suspicion that you are covering up your own
misconduct.
What other actions can I take to protect myself from harassment?
If you are receiving intrusive or threatening phone calls, you can use "Caller
Identification" or enlist the telephone company's Annoyance Call
Bureau in obtaining evidence of the origin of the calls. (You should
be aware that when you engage the Annoyance Call Bureau, the results
of their telephone trap are reported to the police, who then proceed
to petition the local court for an application for criminal complaint.
Often this will be done without your knowledge and/or consent.)
With the help of your forensic psychiatric consultant, you can seek involuntary
hospitalization if the client's behavior meets the standards of M.G.L.
Chapter 136, Section 12. You can file a complaint against the client
in court for "harassing phone calls" (M.G.L. Chapter 269,
Section 14A), "threats"
(M.G.L. Chapter 275, Section 2), or "stalking" (M.G.L. Chapter
265, Section 43). You can also seek a restraining order against an individual
who is threatening your life or liberty.
In taking these steps, of course, it is helpful to engage a colleague
to represent you. You should, however, be careful to act within the
ethical and legal constraints of the attorney-client relationship.
In particular, this means communicating to your attorney, the police,
the courts, or the phone company only that information about the
harassing client which is necessary to the issue at hand.
What should I tell my family?
If the threat becomes visible to all (for example, if you require police
protection), you'll need to find age-appropriate ways to explain
the situation to your children. Even if the threat is not visible,
it usually helps to share your concern with your spouse. It is only
natural to want to shield your spouse from fear and anxiety. However,
if you seem withdrawn and preoccupied, your spouse may worry that
you are withdrawing from him or her. By taking your spouse into your
confidence, thereby substituting realistic worries for fanciful ones,
you make it possible for your spouse to support you more fully.
Can't an attorney help create a responsible, nonviolent atmosphere just
by example?
Yes, attorneys can and often do serve as role models for their clients.
There is a big difference between aggressive representation of a
client and outright aggression on a client's behalf. The recent story
of a New York City attorney who allegedly hired a hit man to kill
an opposing attorney is only the most extreme example of conduct
that crosses over that line. Tempting as it is to join with the client
in an "it's us against the world"
attitude, such a misalliance can backfire against the attorney.
Acknowledgments
The authors thank those attorneys and state and federal officials who
provided helpful consultations during the background research for
this column. To protect the privacy of the individuals involved,
these acknowledgments must remain anonymous.
Copyright on this material is retained by Harold
J. Bursztajn, M.D. Permission is granted by Dr. Bursztajn to reprint
this article in its entirety, including this copyright notice and the
by-line, for educational purposes only. Expressed written consent from
Dr. Bursztajn must be obtained before reproduction of this article for
any other purpose.