Do ask and do tell: Rethinking the lawyer's duty to warn in domestic violence cases

Empirical data document that while domestic violence victims face high risk of recurring abuse, batterers' lawyers may be privy to information that could avert further harm. Attorneys owe a duty of confidentiality to their clients that can be breached only in extraordinary circumstances, such as when counsel learns her client plans to commit a crime. To resolve the tension between client confidentiality and victim safety, this Article argues that, in the context of domestic violence cases, lawyers have an affirmative duty to (1) screen battering clients who have indicated a likelihood of harming others, (2) attempt to dissuade them from carrying out planned violent crimes, and (3) warn identifiable abuse victims whom their clients have threatened. Using doctrinal and normative analyses, the Article posits that attorneys who fail to take these pre-emptive actions may be held liable in tort for their omissions. In addition to clarifying the lawyer's obligations, this Article provides guidance as to the steps necessary for avoiding tort liability while increasing victim safety. It concludes with specific recommendations for remedial statutory changes consistent with fundamental precepts of a lawyer's professional responsibility.