January 31, 2017

Mandatory Reporting of Child Porn May Impact Lawyer’s Duty to Report

John Austin

On January 10, 2017, after a two-year fight over patient privacy rights and the privilege of therapists, a California appeals court has affirmed a judge’s decision to dismiss a lawsuit challenging a state law requiring therapists to report patients who admit to viewing child pornography to the police. The plaintiffs, who were two therapists and a substance abuse counselor who treat sexual addiction, sued the state in 2015, arguing that changes to the Child Abuse and Neglect Reporting Act violate a patient’s constitutionally protected right to privacy and deter them from getting help.

A Los Angeles County Superior Court judge agreed with state’s argument that a patient’s right to privacy is outweighed by a far more compelling interest in protecting sexually exploited children. The court held that there’s no “zone of privacy” for illegal conduct and that patients who seek therapy for downloading child pornography do so knowing they’ll be reported and may be prosecuted.

Given that therapists must report child pornography, will the legislature and the courts expand this requirements to attorneys? Presently, there is little guidance. While attorneys should advise clients who discover that their employees have viewed or downloaded child pornography to law enforcement, it is quite different if it is the client himself or herself. A client may admit to it during an attorney-client communication or such evidence may be discovered through e-discovery.

Most mandatory reporting statutes address when a communication is privileged. “Privileged communications” is the statutory recognition of the right to maintain confidential communications between professionals and their clients, patients, or congregants. To enable States to provide protection to maltreated children, the reporting laws in most States and territories restrict this privilege for mandated reporters. All but three states and Puerto Rico currently address the issue of privileged communications within their reporting laws, either affirming the privilege or denying it (i.e., not allowing privilege to be grounds for failing to report). The three states (Connecticut, Mississippi, and New Jersey) do not currently address the issue of privileged communications within their reporting laws.

Practitioners should be careful to navigate the narrow path between mandatory disclosure and protection of confidential information by consulting the state’s mandatory disclosure laws with the rules of professional conduct. A call to the state bar would also be well advised.

John Austin

Principal at John Austin Law Firm in Raleigh, North Carolina.