June 01, 2015

Elder Abuse and Child Abuse: Ethics Rules in Common

Thomas E. Spahn

As states have ramped up their efforts to prevent elder abuse, lawyers representing victims, abusers, family members, other elders, or others who deal with elders must familiarize themselves with the intersection of statutes, regulations, ethics rules, and their professional impulses. The history of these sometimes competing directives in the analogous context of child abuse highlights the difficulty of finding any clear guidance.

Before turning to lawyers’ traditional legal advisor role, note that different principles apply to lawyers acting in nonlawyer roles. For instance, most states require lawyers acting as guardians ad litem to comply with lawyers’ ethics rules—unless their specific guardian ad litem duties plainly require a different action. For instance, lawyers normally must honor clients’ request to keep confidential any abuse clients have suffered. But lawyers acting as guardians ad litem usually have a duty to report such abuse to the court, even over the objection of the person for whom the lawyer serves as guardian ad litem. These differing duties have prompted some unusual legal ethics opinions (LEOs). For instance, in Los Angeles LEO 504 (5/15/2000), the bar held that a lawyer representing a minor could not disclose sexual abuse that the minor had suffered but wished to remain confidential. But the lawyer could seek the appointment of a guardian ad litem, who could then disclose such information in certain circumstances.

To Report or Not to Report?

When they act as legal advisors for victims or abusers, lawyers may have to assess whether applicable state statutes require them to report elder abuse. In the child abuse context, there is a remarkable degree of uncertainty about such reporting obligations. The resulting confusion can create enormous dilemmas for lawyers.

In 1998, the Georgetown Journal of Legal Ethics explained that “[s]ome state statutes specifically include attorneys on the list of mandatory [child abuse] reporters,” but “in a little less than half the states, attorneys enjoy some kind of exemption from the obligation to report child abuse.” Perhaps even more surprisingly, “[m]ost state statutes . . . neither clearly mandate attorneys to report suspected child abuse . . . nor exempt such a report.” And even those statutes that list lawyers as mandatory reporters do not always mention the attorney-client privilege aspects. As the law review article warned, “[i]f there is no mention of the attorney-client privilege, an attorney may be legitimately confused over her responsibility.” Ellen Marrus, Please Keep My Secret: Child Abuse Reporting Statutes, Confidentiality, and Juvenile Delinquency, 11 Geo. J. Legal Ethics 509, 515–18, 520 (1998). Some states have been moving in the direction of clarifying lawyers’ reporting obligations, but confusion remains.

To make matters more difficult to assess, lawyers’ employees and consultants may have a statutory reporting obligation even in those cases where lawyers themselves do not. For instance, in D.C. LEO 282 (6/1998), the D.C. Bar dealt with the child abuse reporting obligations of a lawyer and a social worker “employed by or consulting with” the lawyer. The Bar noted the two professionals’ inconsistent duties and warned lawyers working with social workers to “inform the client that the social worker may have a statutory duty to report child abuse or neglect” while the lawyer may not.

Different Rules for Representing Victims or Abusers

In the ethics context, several rules might apply to lawyers who represent victims or abusers. First, lawyers “may” reveal otherwise confidential information “to comply with other law.” ABA Model Rule 1.6(b)(6). That provides a “safe harbor” for complying with statutory reporting obligations, but any reporting statutes’ uncertainty necessarily clouds lawyers’ analysis under this rule.

Second, lawyers may (but are not required to) reveal client confidential information “to prevent reasonably certain death or substantial bodily harm.” ABA Model Rule 1.6(b)(1). However states’ rules on this issue vary widely— some states require disclosure of such information, rather than just permit it. So lawyers must analyze the pertinent state’s approach.

One might think that it would be easier to analyze the ethics duty of lawyers who do not represent the abuser. But a lawyer representing the victim might have to wrestle with the victim’s instruction not to disclose the abuse to avoid embarrassment, alienating a child/caregiver who is the last link between the victim and the outside world, etc. Unless a client-victim’s capacity is so diminished as to trigger the lawyers’ options under ABA Model Rule 1.14, the lawyer may well have to keep the abuse secret under the ethics rules although statutory reporting obligations might affect that, as discussed above.

Additional Rules for Representing Others Who Know of the Abuse

The issue is not any clearer for lawyers who do not represent either the abuser or the victim, but, rather, someone who knows of the abuse. At first blush, one might think that the law and the ethics rules surely would require lawyers to report abuse in that context. For instance, shouldn’t a lawyer who represents an elderly wife be required to disclose her husband’s abuse at the hands of their angry son? That might seem like a no-brainer, but it involves competing interests. In the child abuse context, most commentators vehemently oppose such reporting obligations.

In a 2006 New Mexico law review article, the author warned that mandatory reporting requirements for lawyers representing witnesses of child abuse risk “devaluing confidentiality and preventing open communication,” and even worse “subjects domestic violence victims to real danger and harm” by possibly triggering abuse of the lawyer’s client. Adrienne Jennings Lockie, Salt in the Wounds: Why Attorneys Should Not Be Mandated Reporters of Child Abuse, 36 N.M.L. Rev. 125, 125 (2006). Similarly, a 2002 Texas law review article flatly indicated that “it is the position of this Note that mandatory reporting requirements should not be applied to attorneys.” Brooke Albrandt, Note, Turning in the Client: Mandatory Child Abuse Reporting Requirements and the Criminal Defense of Battered Women, 81 Tex. L. Rev. 655, 674 (2002). In fact, even the nonabusive family member (the wife in the scenario mentioned above) might be subject to some criminal liability for not having stopped her son’s abuse of her husband.

And such academic writing has found its way into states’ ethics rules. In 2005, a Nevada legal ethics opinion indicated that “the duty of confidentiality should take priority over the mandatory [child abuse] reporting statutes as they apply to attorneys.” Nevada LEO 30 (3/25/2005).

Factors to Consider

Lawyers dealing with the nightmare of elder abuse therefore must (1) determine what rules apply to the role in which the lawyer serves; (2) try to assess whether any mandatory reporting statutes exempt them as lawyers and address the attorney-client privilege issues; (3) check the applicable state ethics rules to identify any mandatory or discretionary confidentiality exceptions for “substantial bodily harm”; and (4) reconcile all of these duties and possible discretion with the professional and emotional impulses that they will inevitably face.

Thomas E. Spahn

Thomas E. Spahn is a commercial litigation partner in the Tysons Corner, Virginia, office of McGuireWoods LLP. He recently served on the ABA Standing Committee on Ethics and Professional Responsibility.