I recently re-watched “Runaway Jury,” the ethically and legally repugnant film adaptation of a John Grisham legal thriller. It’s one of the most unethical movies extant, and before the last couple of years I would have said such egregious lawyer conduct as depicted in the film was unlikely to the point of impossible (as in most of Grisham’s books). The novel and movie involved a high-profile civil suit: the widow of a man murdered when a fired employee “goes postal” seeks to hold the manufacturer of the gun used by the killer liable for millions in damages. A pair of anti-gun zealots conspire to both rig the jury verdict and ruin the evil jury consultant (Gene Hackman) who helped defeat their home town in a similar case years before. In the end the “good guys” win (that is, Hollywood’s idea of “good”); I have mentioned the film before in the context irresponsible films and TV shows that actively misinform the public about a lawyer’s ethical responsibilities. Now comes a jury verdict from Maryland where a jury delivered a multi-million dollar verdict against Walmart for allowing an employee to buy a shotgun before he used it to blow his head off.

O’Shea told her assistant manager, about Mace’s statements. The assistant manager suggested calling the police but didn’t. When Mace came to work, he pulled Mace aside to talk about Walmart’s counseling services. Mace swore everything was hunky-dory. Then Mace bought a shotgun in a sale handled by another employee who testified that he had no reason to know that his colleague was going to use it on himself; Mace said that the gun would be a present for his wife.

The jury found that the assistant manager was obligated to alert the rest of store management about Mace’s state of mind, and Walmart itself was held liable for the failure of company policies leading to Mace’s death. The jury awarded approximately $2.5 million in economic damages and $8 million in non-economic damages.

In his discussion of Brady v. Walmart, which he finds “raised difficult questions,” Jonathan Turley cites an earlier case, Tarasoff v. Regents of University of California, in which an Indian graduate student at Berkeley was told by his girlfriend that she wanted to date other men. He went to a University Health Service psychologist whom he told that he wanted to get a gun and kill the woman for breaking his heart. The counselor alerted campus police, who interviewed the grad student and decided that he was not a risk. BANG!

In the subsequent lawsuit, Justice Mathew O. Tobriner held that “… the confidential character of patient-psychotherapist communications must yield to the extent that disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” The hospital was held liable even with the recognition that the result could put a chilling effect on counseling. This is similar to the ethics conflict created by the so-called “death exception” to lawyer-client confidentiality, which allows an attorney to reveal otherwise privileged or confidential client communications if the attorney “knows” that doing so will save a third party from death or serious bodily injury.

As in Tarasoff, there was an ethics conflict in the Walmart case. The Second Amendment ensures a right to gun ownership, and the employee has privacy rights. However the famous quote “The Constitution is not a suicide pact” (Justice Goldberg in the court’s opinion in the 1963 U.S. Supreme Court case Kennedy v. Mendoza-Martinez) seems particularly apt here.

I believe that from an ethical perspective, but not a legal one, the Walmart employees who knew about Mace’s stated desire to kill himself had obligations to “fix the problem” and a “duty to rescue” no matter what they felt the odds were that their colleague would really do what he had threatened. The tragic result was classic moral luck: if Mace had relented, even if every other aspect of the scenario were exactly the same, there would have been no lawsuit. Mace could have also purchased the gun from any other store, or slashed his wrists, or jumped off a bridge. Then the two employees who knew about his state of mind would have been equally responsibly ethically, but Walmart would have no liability.

Turley writes, perplexed, “I am unsure of how far the store could have gone. [The assistant manager] would have needed to tell all employees not to sell Mace any sharp objects, guns, or products capable of inducing overdoses or harm. That could trigger a lawsuit. If he fired or suspended Mace, he might be sued under disability laws.”

If the verdict holds up, it will force companies to hold trainings and create strict policies making it mandatory for employees to take certain steps when they reasonably suspect that a co-worker is ready to take violent action, and privacy be damned. The result, I expect, will be more tragedies, not fewer.

The second part of the EA motto “When ethics fails, the law steps in” is “and usually makes a mess of it.” How much better it would be if the culture taught us all the importance of being proactive when doing the right thing carries risks. Four times in my life I have taken aggressive steps to intervene when someone I knew (three acquaintances and one family member) seemed to me to be on the verge of harming themselves. I only regret my actions in the case of the one who in fact did kill herself, and that was because the action I took was not strong enough.

If the slippery slope from the Walmart case goes where I fear it will go, there might be four deaths in similar circumstances instead of just one.