By now, probably all of you have heard about the paralegal who was killed earlier this year when a client entered the law firm’s second floor offices and shot him in the stomach six times. The client, who was apparently upset at how the firm was handling his case, was recently found guilty of premeditated murder and sentenced to life without the possibility of parole.
Minnesota has seen its fair share of assaults on lawyers over the years. Recent trends seem to indicate that lawyers are at greater risk of violent attack than ever before, likely because they often handle highly charged legal disputes like child custody, marital dissolution, bankruptcy and criminal charges. While personal security is an issue for all attorneys, this is particularly true for solo and small firm lawyers who, unlike the large firm downtown lawyers, usually don’t work in buildings that require key cards to gain access, have security personnel wandering the hallways or video cameras focused on entryways.
"Trust Your Gut," Surviving Attorney Advises
As part of Minnesota Lawyers Mutual Insurance Company’s monthly webcast series (available for insureds and non-insureds), Todd Scott, MLM’s Vice President of Risk Management, recently spoke with Osseo attorney Richard Hendrickson, who was shot by the opposing party in a legal matter in September 2003. During the program – “Recognizing Dangerous Clients & Mitigating Security Risks” – Scott and Hendrickson discussed the shooting, the tell-tale signs that Hendrickson was dealing with an unbalanced opposing party, and what steps lawyers can take to reduce the risk that they will become victims. Hendrickson’s overriding advice: “Trust your gut. Be aware.”
In Hendrickson’s case, he was representing Shelly Joseph-Kordell, who had been named conservator/guardian of Susan Berkovitz’s father. Berkovitz, who was upset by the appointment, proceeded to harass and intimidate Kordell and Hendrickson in a variety of ways. Hendrickson explained that Berkovitz demanded to be in control, continually fought with others, made illegal attempts to access her parent’s money, ranted at Kordell on the phone, and constantly complained to the court, the police and even the Better Business Bureau. Between May 2001 and April 2003, Berkovitz filed 10 separate ethics claims against Hendrickson with the Minnesota Office of Lawyers Professional Responsibility (OLPR). Eventually, the court ordered that Berkovitz not enter the clerk’s office or even call to talk to the staff.
Berkovitz started bringing frivolous actions against Kordell as well, including the harassment proceeding that brought Hendrickson and Kordell to the Hennepin County courthouse the day of the shooting. Berkovitz’s behavior had become so increasingly bizarre that Kordell requested that security accompany them to the courtroom. Unfortunately, at that time, Hennepin County did not have weapons screening mechanisms in place, and Berkovitz was able to enter the building with a firearm. As Hendrickson was reaching into his briefcase before the hearing, Berkovitz shot him in the neck. She then moved on to Kordell, who had previously gone into the restroom. Berkovitz found her, shot her four times, moved to another floor of the building and then waited for security to take her into custody. It was nothing short of a miracle that Hendrickson survived, a fact he recognizes to this day. He clearly still feels a flood of emotion when he talks about his client, however, who was not so fortunate.
The Ethical Rule regarding Reasonable Certainty of Harm
Hendrickson said that today he would recognize the tell-tale signs of a dangerous client or opposing party and would be “much more careful” in how he proceeds when he begins to see those signs. But what exactly should lawyers do when they are concerned that a client may cause harm to them, their staff, or the opposing counsel or party? Because Minnesota Rule of Professional Conduct 1.6 generally prohibits lawyers from knowingly revealing confidential client information, they can find themselves in a conundrum as to how to proceed. However, an exception to the confidentiality rule involves situations where violence may occur. Specifically, under Rule 1.6(b)(6), a lawyer may reveal information relating to the representation of a client if “the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm.”
The problem, as Scott and Hendrickson acknowledge, is that while the rule seems straightforward, it can be tough for lawyers to determine if it’s reasonable to believe that the threat of harm is reasonably certain.
“Lawyers don’t often know when to apply that,” Scott noted, adding that there is a difference between an angry person and a crazy person but that difference can be very difficult detect.
How to Apply the Rule
Citing the “Practitioner’s Guide to Risk and Danger in Domestic Violence Cases,” Scott pointed to the following as factors that evince an elevated risk of lethality:
- Stalking
- Physical acts of violence
- Threats to kill
- Animal abuse or killing pets
- Damages to property
- Aggression towards intervenors
Scott advised that lawyers who are concerned about potential violence by a client should get some advice from an ethics expert or the OLPR. Hendrickson suggested doing that as quickly as possible.
Keep Firm Members Safe
In terms of keeping your firm members safe, Hendrickson and Scott recommended talking to staff and discussing with them their safety concerns and how they would react to an incident. Know how to get ahold of security personnel or the police. Discuss code words and have an escape plan. Finally, they said it’s important to get to know your clients: Do they own guns? Have they been violent in the past? Do they exhibit acts or make threats associated with risk or lethality?
“Listen to your gut,” said Hendrickson. “If your gut tells you something is wrong, look at it. … Because if you make a mistake, look at what can happen.”