The Future Harm Exception: Coercive Control as Serious Psychological Harm and the Challenge for Lawyers' Ethics

Abstract

Can a lawyer use the future harm exception to prevent her client from coercively controlling his former spouse? Lawyers are required to keep their clients’ secrets unless an exception applies. One of those exceptions is where there is a clear and imminent risk of serious bodily harm or death to an identifiable group or person. The exception provides that serious psychological harm constitutes serious bodily harm, but there is very little guidance as to what type of threat might meet the test. Coercive control is a type of family violence whereby an abusive spouse will use a pattern of tactics designed to control his partner. In this paper, I argue that the psychological harm caused by coercive control meets the test for the future harm exception. An abuser’s lawyer can use the exception to try to prevent psychological harm to her client’s former spouse. However, this idea creates tension with the lawyer’s duty of loyalty, and the test itself is challenging in the context of coercive control. In this paper, I provide three recommendations for amendments to the Model Code of Professional Conduct, which would start to make the Code responsive to coercive control; but to be truly responsive, real change needs to be made to the justice system and the lawyer’s role itself.

Keywords: Family Violence, Coercive Control, Legal Ethics, Family Law, Confidentiality, Privilege