Rule 9.2.5 permits (but does not compel) you to disclose confidential information for the purpose of preventing imminent serious physical harm to your client or to another person. 

General considerations

It is clear from the language of the exception that:

• the purpose of the disclosure must be to prevent harm from occurring 
• the harm must be imminent
• the imminent harm must be serious and it must be physical harm, and
• the harm may be harm to your client or another person

As the Law Council of Australia notes in its commentary on the professional conduct rules, unlike Rule 9.2.4, Rule 9.2.5 does not require the imminent serious physical harm to constitute a serious criminal offence.

Even though the situation may be very urgent, you need to use sound judgement when deciding to disclose under this exception. You should reflect deeply on whether the exception applies in the circumstances. The following questions may assist you to determine whether disclosure is permitted.

• is the potential harm serious? Why? 
• is it physical harm?
• is there a reasonable basis for thinking the harm is about to happen?  
• how likely it is that the harm will occur – do you have sufficiently detailed or compelling information to form an opinion that serious physical harm will occur?
• can the potential victim (your client or another person) be identified?
• are there other reasonable ways to prevent the harm that would not require disclosure of confidential information?
• would your disclosure prevent the imminent serious physical harm from occurring? 

Adapted from the Queensland Law Society’s (QLS) Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners and the Federation of Law Societies of Canada’s Commentary to the Model Code of Professional Conduct

This exception is relevant where your client is threatening suicide or self-harm. When dealing with these kinds of situations, you should stay calm, demonstrate care and empathy, without taking on a counselling role. You should encourage your client to seek immediate support from a qualified professional (e.g. a psychologist, GP). However, you may determine that the circumstances justify your approaching a qualified professional or the police on your client’s behalf. The QLS has published a useful information sheet about responding to threats of imminent serious physical self-harm.

Ethical assistance

Any lawyer considering disclosing under this exception is encouraged to contact the Law Institute of Victoria’s ethics helpline, which is freely available to all Victorian lawyers for confidential ethical assistance. Email ethics@liv.asn.au or call 03 9607 9336. 

Related guidance

• Confidentiality and its exceptions
• Disclosure where there is express or implied consent
• Disclosure that is permitted or compelled by law
• Disclosure to seek advice on legal or ethical obligations
• Disclosure to avoid the probable commission of a serious criminal offence
• Disclosure to professional indemnity insurer
• Steps to take when considering making a disclosure