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:

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.


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.