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. It seemed obvious to me there was no reason to do anything except proceed with the client’s case. I (Jude) would also advise my client to avoid confrontations with anyone who worked for his former employer and what he might consider saying if approached by the media.
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.
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 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.”
I have no problem with the rule, if there is reliable evidence to believe a client is about to kill or injure someone. The question is whether there is sufficient reliable evidence to justify firing a client and reporting him to the police—a serious decision with significant consequences.
Evidence is facts, not conjecture, speculation, or supposition. The only fact addressed by attorneys who advocated reporting the client to police was the lawfully issued gun permits. It did not matter that he lawfully owned a firearm, or had a firearm permit, including an enhanced carry permit. He had met significant background and training criteria. He does not have anything in his background that would prevent him from owning a firearm or possessing a permit, including a history of criminal activity, violence, or mental illness.
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.
No one claimed there was anything legally improper about being upset with a former employer. Hiring a lawyer to file a lawsuit is a pretty good indicator of being upset. It is what you would expect from a law-abiding citizen, not a dangerous person. The gun-phobic attorneys acknowledged, in response to a question by the instructor, that displaying non-threatening signs in a public area is lawful, and is likely protected by the First Amendment.
Here’s what I found truly amazing. We are attorneys! We take evidence seriously. We study evidence in law school. Knowledge of evidence is tested on bar examinations. We would be appalled at the thought that a judge might permit our clients to be jailed based on conjecture.
If gun-phobic attorneys like this have their way, there may be truly terrifying consequences. They would punish an American citizen who had done absolutely nothing wrong. Because the lawyer claims his client is reasonably certain to cause death or serious bodily harm, the police would have little choice but to take action, up to and including arrest.
A lawyer’s claim that his client is dangerous is substantially identical to the judicial standard for psychiatric detention. Under these circumstances, the client might be held for a mental evaluation. Even if ultimately cleared, this citizen would be publicly (and permanently on the internet) labeled as “dangerous.”
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.
