What can lawyers who are professionally charged with keeping client confidentialities do when they are entrusted with abuse confessions? Or abuse allegations? One student's statutory research affected his answer. From guest blogger and current Family Law student Jeffrey Pommerenck:
"Are you going to touch me in private places like my step-daddy does when we are alone?" - the young child of your divorce client hesitantly asks you this question after the father steps out of your conference room. What do you do?
While this is a difficult question to answer during a professional responsibility and ethics lecture, it is even harder to address in practice. People can agree that child abuse is a horrific crime and extremely repugnant, but can struggle to reconcile gut reactions with potential legal, ethical, and moral obligations as attorneys. Some questions to consider include: 1) Do I have a legal or ethical requirement to report the suspected child abuse? 2) Even if I am not required to report, can I voluntarily report the suspected child abuse if I feel morally obligated to do so? 3) How does suspected child abuse intersect with my duty of client confidentiality? 4) What if I think the mother probably coached the child in this case since the father is almost certainly going to get exclusive custody?
A person who suspects child abuse falls into one of two categories: a mandatory reporter or a permissive reporter. Many states statutorily define who must report the suspected child abuse. See FindLaw. Checklist: Are You a Mandatory Reporter of Child Abuse? (last accessed October 27, 2014) http://family.findlaw.com/child-abuse/checklist-are-you-a-mandatory-reporter-of-child-abuse.html.
Some states treat attorneys as permissive reporters. For example, an attorney is not listed as a mandatory reporter in Virginia, unless he or she falls under another category. See Va. Code § 63.2-1509. However, per Va. Code § 63.2-1510, "[a]ny person who suspects that a child is abused or neglected may report."
Conversely, other states treat attorneys as mandatory reports. Oregon Rev. Stat. §§ 419B.005-010 treat public and private officials as mandatory reporters. Public or private officials include attorneys or court-appointed special advocates. While there is an exception for privileged communications such as the lawyer-client privilege (see ORS § 40.225 (Rule 503. Lawyer-client privilege), "[c]hild abuse reporting is a 24-hour-a-day, 7-day-a-week responsibility." See Oregon State Bar General Counsel's Office. Mandatory Child Abuse Reporting for Lawyers (last visited October 27, 2014) http://courts.oregon.gov/OJD/docs/OSCA/cpsd/courtimprovement/jcip/2013EyesConf/P2osbquestionsanswersmandatoryrepforlawyers.pdf (referring to HB 4016 (2012)).
Attorneys need to grapple with the issue of child abuse before they are confronted with it. Attorneys do not want to rush into a decision since it will have tremendous impacts on the child, the alleged abuser, and the attorney.
Lawyers should feel morally obligated to report suspected child abuse when confronted with that kind of situation. Since many states consider lawyers to be in the category of mandatory reporters, there is no absolute violation of the attorney-client privilege if the attorney were to report. Reporting can be done anonymously and without violating any rules of professional responsibility. Protecting children should be a moral obligation and duty. Lawyers take an oath to maintain justice; so, how can one maintain justice without protecting the most vulnerable and innocent? Lawyers are some of the brightest, most diligent individuals among the professional community. There is no question that it will take creativity and sensitivity to be an advocate for an innocent child who cannot advocate for himself, but it can be done while continuing to uphold all required duties and obligations.
ReplyDeleteLawyers should be held to a higher standard, not only as professionals, but as people. We have seen the insides and outs of the law that a typical person hasn't when we studied cases in schools. It is our duty to make sure that kids are protected. We also need to keep in mind with whats in the best interest of the child.
ReplyDeleteA few months ago this exact question was posed to me by a guest speaker, a judge, at an ethics symposium. Much to my surprise, the focus, at least from him, was more on protecting how the client viewed you than on the safety of the child. As an attorney, while you shouldn’t throw the client immediately under the bus before clarifying what the child meant/was asking, your loyalty must be to the law first. The basis of our profession is at its root justice and truth not likability and approval. In my opinion, a client who would do such a thing, in the instance that upon clarification it is in fact how it sounded, is not worthy of my consideration of his perception of me. I'd trade popularity for a creeper any day.
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