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November 01, 2015

Rule Limits When Attorneys May Report Child Abuse

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary “to prevent reasonably certain death or substantial bodily harm,” in which case the lawyer must report it, the Indiana bar’s ethics committee has concluded.

The committee said that although an Indiana criminal statute makes reporting mandatory for anyone who suspects child abuse, a lawyer’s duty of confidentiality under Indiana Rule of Professional Conduct 1.6 “is generally paramount over the general duty to report.”

That rule, the committee added, allows “the attorney to make a commonsense, reasonable determination of whether the children will be subject to ‘reasonably certain death or substantial bodily harm,’ and only disclose to prevent that harm.”

But while Rule 1.6(b)(1) indicates that lawyers “may” disclose information about child abuse in scenarios involving either imminent death or substantial injury, the committee said they “must” do so.

It explained that once an exception to the confidentiality rule applies, the mandatory nature of the reporting statute takes precedence, requiring the attorney to report the injurious conduct to the appropriate authorities even though the ethics rule is couched in permissive terms.

‘Constitutional, Pragmatic and Statutory Reasons’

The opinion addresses what the committee described as a “conflict between Indiana’s mandatory reporting statute and the duty of confidentiality.”

Ind. Code §§31-33-5-1 and 31-33-5-4 require any “individual who has reason to believe that a child is a victim of child abuse or neglect” to “immediately” make a report to law enforcement officials or a child services agency. Failure to do so is a misdemeanor.

“The statute is broad and, unlike some other states, does not except lawyers from the reporting requirement,” the opinion states. Nevertheless, the committee said that for “constitutional, pragmatic and statutory reasons,” it believes the “duty of confidentiality is paramount over the general duty to report.”

The committee said the fact that Indiana’s constitution gives the state supreme court authority to regulate lawyers indicates that the Indiana Rules of Professional Conduct, which are promulgated by the court, “control over conflicting legislation.”

Rule 1.6 Controls

Having determined that Rule 1.6 generally trumps Indiana’s child abuse reporting statute, the committee concluded that, unless the client consents to disclosure, the rule forbids the attorney to report any abuse that does not come within the exception in Rule 1.6(b)(1) authorizing the disclosure of information necessary “to prevent reasonably certain death or substantial bodily harm.”

Citing Comment [2] to Rule 1.6, the committee said mandatory reporting would undermine the “fundamental principle” that “the lawyer must not reveal information relating to the representation” unless the client consents because confidentiality is critical to encouraging clients “to seek legal assistance and to communicate fully and frankly” with lawyers.

“If the lawyer informs the client that reports of abuse or neglect are subject to disclosure, the client will likely withhold such information, to the detriment of everyone involved,” the committee stated.

May or Must?

The committee nevertheless concluded that “a lawyer must report that a child is a victim of abuse or neglect ‘to prevent reasonably certain death or substantial bodily harm.’”

“[W]hile the prudential concerns (harm to the attorney-client relationship chief among them) remain, Rule 1.6 ‘recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm,’” the committee stated, citing Comment [6] to the rule.

“The reasons for ‘exempting’ attorneys from the general reporting rule being, in such situations, either nullified or substantially negated, the general reporting requirement applies, and lawyers must report,” the committee concluded.

Reproduced with permission from ABA/BNA Lawyers’ Manual on Professional Conduct, 31 Law. Man. Prof. Conduct 522 (Sept. 9, 2015). Copyright 2015 by the American Bar Association/The Bureau of National Affairs, Inc. (800-372-1033)