If I Were Zimmerman’s Lawyer

I would feel a moral obligation and would want to tell David or David’s lawyer about the aortic aneurysm. That is a very dangerous condition. The aneurysm can rupture at any time, resulting in near-certain death. I would try to convince Zimmerman to tell David, but just in case I failed, I would begin researching the question of whether I could disclose the information on my own without violating the Rules of Professional Responsibility.

My first consideration would be whether Hannah’s report was confidential information. Texas Rule 1.05 describes “confidential information” as both “privileged information” and “unprivileged information”. “Unprivileged information” is all information not privileged that relates to a client or is furnished by the client, acquired in representing the client. There is a question of whether Hannah’s report falls under that definition. The report was not furnished by the client nor does it relate to the client. However, the report does relate to the client’s case. I am not sure if the State Bar would grant any legitimacy to the distinction between the client and the client’s case. In any event, Hannah’s report does fall under the definition of “privileged information”: the report was a communication between the lawyer and the lawyer’s representative, not intended to be disclosed to third persons. Therefore, the report is confidential.

I might be able to disclose the information anyway. Rule 1.05 allows me to disclose confidential information to prevent my client from committing a fraudulent act, and compels me to do so when the fraudulent act is likely to result in substantial harm or death. But I am not sure if my client’s withholding this information from David, allowing him to rely on incomplete information during negotiations, is a fraudulent act. I do not know if it counts as an intentional misrepresentation of a known fact. It definitely makes me uncomfortable. (I had a course in negotiation this summer with Prof. Rai. I got the impression from him that most anything goes in a negotiation, and if the other party is incompetent or just does not think of something, that is the other party’s problem. That may be alright when the thing being negotiated is an employment contract or a lease, and it may be alright in some tort settlements. But I do not think it is alright when a person’s life is at stake.) The 1.05 issue depends on how the question of fraud is decided.

Rule 3.03 may require that I disclose the information to the court, but I am not sure. I think the aneurysm is a material fact relevant to the settlement, but I do not know if excluding it from the list of injuries in the petition for settlement approval would be considered an affirmative false statement to the court. The question is whether, and to what extent, I have a duty to disclose that information to the court. I can draw an analogy between this question and the duty in 3.03 to disclose to the court controlling authority that is adverse to my case. In litigation the court must make a decision based on precedent and rules of law. If my opponent does not tell the court of controlling authority on the question before it, then I must tell the court. Here, the court must decide whether the parties have entered into a valid settlement contract, and must decide whether to approve it. Hannah’s report and the existence of the aneurysm are not “authority”, but they, combined with David’s ignorance, are pieces of information that the court would use in deciding whether to approve the settlement. Further, I suspect that were there a doubt in the court’s mind about the existence of an aneurysm, the court would want the parties to disclose to the court what they knew about it.

Rule 3.03 also requires that I not offer evidence that I know to be false. I think attaching to the settlement a list of injuries that I know is incomplete is perpetuating a falsehood. However, I do not know if the list of injuries would be considered evidence, or whether anyone would agree with me that an incomplete list of injuries is a falsehood.

At my next meeting with Zimmerman I would discuss with him the above legal issues. I would also discuss with him the moral issues implicated in withholding such information from the victim. I would impress upon him the gravity of David’s condition and the serious fact that he could die from it at any time. I would tell him that, although perhaps not legally responsible, I would consider myself and him (and Hannah) morally responsible for not preventing the death. I would try my best to convince Zimmerman to disclose the information either to David or to David’s lawyer, or to authorize me to disclose it to them. If that failed, I would tell him that I was considering taking my chances with the ethics rules and disclosing the information on my own. If I did disclose the information on my own, without Zimmerman’s permission, I would probably tell the court in camera, although I am not sure if that would present a whole other set of problems for me. I would want to get the information out without directly betraying my client, which is why I would rather tell the court than tell David.

Another possible way of getting the information into the opponent’s hands would be to prominently display the report at our next settlement negotiation. If David’s lawyer were to see a folder marked “Dr. Hannah’s Report” then perhaps he would ask to see it. Perhaps he would not, though, because already he did not request it during discovery.