Hello and welcome to this JACPA Ethics Alert blog which will discuss the media reports that a Montana federal judge recently ruled that a Florida lawyer whose client committed attempted murder and was killed in a shootout in Montana was not required to breach confidentiality and report the client prior to the violent incident.
The lawyer, David Gilmore, prepared a will for Thomas Kyros, an 81-year-old retiree from New Port Richey, who apparently was obsessed with a person named Promethea Pythaitha. According to the reports, she was a “Greek-American child genius who graduated from Montana State University at 14 with a degree in mathematics”. Kyros heard about her and began sending her financial support and became obsessed with her. Pythaitha and her mother, Georgia Smith, eventually refused to communicate with him or accept his support and gifts. Kyros blamed Smith for the refusal to communicate and, in the will prepared by Gilmore, he gave Pythaitha two-thirds of his estate; however, the will stated in bold that Pythaitha would receive no money “while her mother, Georgia A. Smith, is living.”
In 2010, Kyros drove to Montana where Pythaitha, who was then 19, and Smith lived. On January 17, 2011, he drove his car into a fence around their home in a remote area of Montana and, according to the reports, when the two women came outside, Kyros shot Smith five times, calling her a “whore” and a “beast”. Smith survived but Kyros was killed in a subsequent shootout with law enforcement officers.
In October 2011, Gilmore was named a defendant in a federal lawsuit filed by Smith and Pythaitha in the U.S. District Court in Montana. The lawsuit alleged that Gilmore, who was also the personal representative of Kyros’ estate, knew that his client was in Montana, had enough information to know the client was planning something potentially violent, and should have contacted law enforcement. To support this allegation, the lawsuit alleged that Gilmore received a fax from Kyros more than a month before the attempted murder which stated that all information about Pythaitha was null and void “for as long as Georgia is alive. According to the lawsuit, as a result of the shooting, Smith is paralyzed in her left arm and will require “a lifetime of care” and further surgery to repair the wounds caused by Kyros, and both Smith and Pythaitha suffered severe emotional and psychological distress.
The Montana federal judge ruled that Gilmore did not have sufficient information that his client would cause bodily harm to Smith (or Pythaitha) to require him to breach his client’s confidences and disclose the information by reporting him to law enforcement; therefore, he was not required to make the report.
This lawsuit raises some interesting questions about the potential conflict between the law of negligence and a lawyer’s obligation not to disclose confidential information to third parties except under certain circumstances.
Florida Bar Rule 4-1.6 addresses when a Florida lawyer may or must disclose client confidential information:
(b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent a client from committing a crime; or
(2) to prevent a death or substantial bodily harm to another.
(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to serve the client’s interest unless it is information the client specifically requires not to be disclosed;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
(4) to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(5) to comply with the Rules of Professional Conduct.
Bottom line: In this lawsuit, the judge ruled that the lawyer had no obligation to disclose the confidences of his client to prevent the client’s later violent actions; however, could the lawyer be potentially liable under a theory of negligence for failing to report the client? That is a legal question which is outside the scope of this discussion; however, whether a lawyer has sufficient information to require mandatory (or permissive) disclosure of client confidences must be examined by each lawyer on a case by case basis.
Be careful out there!
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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