My Brother’s Keeper

By: Abbey Block

Am I my brother’s keeper? Or more specifically, can lawyers be sued for their clients’ bad behavior?

A newly proposed bill out of Washington state says yes. The bill, HB 1891, provides the following legal framework, under which an attorney can be sued for injuries caused by his or her client who is released from detention pending trial:

Any person injured by an individual who was previously arrested for a violent offense, and subsequently released from custody before trial for such offense as a result of the advocacy of their criminal defense counsel, has a cause of action against such criminal defense counsel if:

(a) The individual caused  the injury after being released from custody; and

(b) the criminal  defense counsel failed to adequately consider the risk of public harm that could result from the individual being released from custody.

HB 1891 (2025) (emphasis added). The proposed statute requires that to succeed on such a claim, a plaintiff need only show, by clear and convincing evidence (a relatively low standard in the judicial system) that the attorney “intentionally, knowingly, or recklessly disregarded the risk of public harm when [the attorney] advocated for their client’s release from custody.”

Simply put, if a defense attorney succeeds in getting their client out on bail prior to trial, and that client ultimately causes harm to a third-party, the lawyer can be held  personally liable and required to pay monetary damages provided that a finder of fact determines the attorney should have known their client was likely to cause a public harm.

Notably, the statute does not define the scope of the “injury” or “public harm” providing the basis for the attorney’s liability. This leaves an open question as to whether a plaintiff is limited to circumstances of physical injury, or if liability arises when the client causes other, more expansive, types of harm such as economic harm, emotional injury, or property damage.

This proposed statute would put the most diligent and earnest attorney in an impossible position. On the one hand, all attorneys are under a professional and ethical duty to zealously advocate on behalf of their client. Indeed,  the comment accompanying Rule 1.3 of the American Bar Association Model Rules of Professional Conduct provides that

[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.

But if the lawyer fulfils this duty and succeeds in zealously advocating for his or her client’s release pending trial, the attorney may be held personally liable for the future wrongful conduct of their client. The law would effectively conflate hindsight with foresight. On the other hand, if the attorney subdues their advocacy and concedes to their client’s continued detention pending trial for fear of facing personal liability, he or she has likely violated the duty they owe to their client. This legal framework creates a host of perverse incentives and undermines the attorney’s professional and ethical obligations. It is a legislatively created conflict of interest.

It may be argued that defense attorneys should be able to identify red flags and acknowledge when their client is not fit for pre-trial release. There already are innumerable situations where defense counsel consents to detention, either temporarily or over the life of the case. And proponents of the legislation would likely argue that the imposition of liability is appropriately limited given that the statute only applies in cases where the defendant is arrested for a statutorily defined “violent offense” such as manslaughter, robbery, drive-by shooting, extortion, or vehicular assault.

Sure – there are circumstances in which it is relatively clear cut that a criminal defendant poses a danger to the community, such as when the defendant has made explicit threats directed at a particular person or when a dead body was found in his freezer. In such circumstances, defense counsel often find themselves conceding or tacitly recognizing that pretrial detention is a near certainty. But most cases are not as black and white – especially considering the vague nature of the “injury” giving rise to possible liability under the proposed statute.

For example, if my client is arrested for vehicular assault stemming from a DUI, should I – the client’s attorney – be held personally liable if six months after being released from jail and while awaiting trial, my client gets into a fist fight with someone at a football game? Does that liability apply if my client rear-ends someone on the highway, throws a baseball through their neighbor’s window by accident, or violates the terms of a business contract? Is it reasonable to assume that the client’s defense attorney could have reasonably foreseen these scenarios? Surely not. While these hypotheticals may seem uncommon, they illustrate the intellectual hurdles one must jump through to justify the imposition of liability under such circumstances.

If liability can be imposed on a defense attorney for the conduct of their client, who else could fall under the umbrella of blame? Should the judge, who ultimately grants the client’s release from detention pending trial, also be held personally liable? Indeed, aren’t judges in the best position to fully evaluate the evidence and characteristics of the criminal client to determine if he or she is likely to pose harm to the public? They are also free of any ethical obligation to zealously support the defendant. Targeting defense attorneys and ignoring the judges’ role is a conspicuous absence. In another context, if a doctor saves the life of a patient – knowing the patient has dangerous proclivities – can the doctor be held liable if the patient later causes injury to a third party? Simply put, the bill’s underlying rationale makes it easy to slide down a slippery slope of culpability.

Such a bill would undoubtedly have a plethora of negative down-stream repercussions beyond the immediate liability imposed upon the defense attorney.  As a practical matter, the cost of liability insurance for defense attorneys would likely rise exponentially to account for the increased risk of a civil lawsuit and potential payout. This would have a trickle-down effect. Attorneys, who will be paying more for professional liability insurance, would likely raise their hourly rates to account for the increase in operational costs. This would ultimately make it even more costly to obtain legal representation.

The bill would also likely exacerbate the existing overcrowding issues in prisons and jails. According to a report  published by the American Civil Liberties Union (“ACLU”) of Washington, Washington state’s incarceration rate has doubled since the 1980’s and by 2016, “the state’s incarceration rate was more than three times higher than the average rate of the more than 30 Organizations for Economic Co-Operation and Development (OECD) countries.” Another ACLU study found that from 1980 to 2016, Washington state’s prison population increased by 332 percent. This problem would only get worse if attorneys are disincentivized and discouraged from seeking pre-trial release for the clients.

Additionally, the law does not differentiate between retained (i.e., hired) counsel and public defenders. Rather, all defense attorneys would be held to the same standard and subject to the same potential liability. It seems likely that the risk of being sued for a client’s bad behavior would deter would-be defense attorneys – including public defenders – from accepting such a position. Indeed, public defenders would likely have the highest daily volume of offenders triggering this law’s applicability and the least amount of resources to both investigate the detention issue and to pay for their inability to perfectly predict their client’s future behavior. This would exacerbate the pre-existing shortage of public defenders and increase the already heavy case load that most public defenders juggle.

The law would also likely incentivize defense counsel to vigorously argue for a speedy trial so as to lessen the amount of time during which their client could possibly get into trouble while awaiting their day in court. While defendants have a constitutional right to a speedy trial, they often waive that right for a host of practical reasons such as the need for more time to prepare their defense or to get their affairs in order. Not only would these considerations be disregarded solely for the sake of avoiding civil liability, but the judicial system would be overburdened by an influx of defense attorneys demanding trials as soon as possible. Indeed, if every defense attorney demanded trial right away, the court system would become administratively overwhelmed and the quality of preparation for trial would suffer.

The motivation underlying Washington’s proposed bill is, on the surface, a populist measure: keep the community safe from dangerous criminal offenders. In theory, it seems reasonable that a defense attorney should not recklessly advocate for the release of a potentially dangerous offender into the community. But this oversimplifies the professional, ethical, and constitutional calculations that criminal defense attorneys must make when representing their client.

In the end, any legislation that inhibits an attorney’s ability to zealously advocate for their client cannot comport with the defendant’s Sixth Amendment right to counsel. Indeed, in Strickland v. Washington, Justice O’Connor wrote that the “Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.”[1] Here, HB 1891 would do just that.

[1] 466 U.S., 668, 686 (1984).