Does the mandatory reporting law trump attorney-client
privilege?
When a psychologist is asked by defense counsel to assist in evaluation of a defendant charged with sexual abuse of a child, for purposes of sentence mitigation, the psychologist must consider the relevant state statute for mandatory reporting of suspicion of or knowledge of child sexual abuse. Given that the information gleaned from the defendant may go beyond what is specifically being prosecuted, for example, does the psychologist's status as a mandatory reporter require that any information be provided to the child protection agency, and if so, what are the implications, in terms of the defendant's right to avoid self incrimination and to have access to expert consultation in developing a mitigation case?
Mary A. Connell, Ed.D., ABPP
John Niland, Director
of the Texas Defender Services Trial Consulting Project, provides a response
from the perspective of the attorney, Laurie Morgan
provides a second opinion similarly addressing the attorney’s obligations, and
Stephen Golding, Professor of Psychology and Adjunct Professor of Law and of
Psychiatry, University of Utah, responds from the psychologist’s perspective.
John Niland graduated from the University of Texas Law School in 1971. He practiced in El Paso where he was President of the El Paso Young Lawyers Association and chosen Outstanding Young Lawyer. He served as a member of the Board of Directors of the Texas Young Lawyers. He practiced law in Kentucky from 1992 until May of 2000 during which time he was contract manager, directing attorney and regional manager for Kentucky's Department of Public Advocacy (DPA). He has maintained an active capital defense caseload and has presented at capital training programs around the country. He was DPA's Gideon Award recipient for the year 2000.
Laura W. Morgan owns and operates Family Law Consulting in Charlottesville, Virginia. She is the Chair of the Child Support Committee of the Family Law Section of the American Bar Association and the author of Child Support Guidelines: Interpretation and Application. She can be reached at http://www.famlawconsult.com
Stephen Golding, Professor of Psychology at University of Utah, Salt Lake City, teaches and practices in the areas of criminal responsibility and competency to stand trial, professional ethics and standards of practice, and child sexual abuse. He chaired the committee that produced the “Specialty Guidelines for Forensic Psychologists” and is Past President of Division 41. He regularly conducts workshops on law, ethics, and professional practice for the American Board of Forensic Psychology
MANDATORY REPORTING OF ABUSE AND ITS IMPACT ON
LAWYERS’ ETHICS AND ON THEIR USE OF EXPERTS
All fifty (50)
states, and the District of Columbia, have enacted laws that require the
reporting of suspected child abuse.[1] The statutes, with varied requirements, were
enacted so that states could qualify for federal grant funding pursuant to the
Child Abuse Prevention and Treatment Act.[2] This legislation can be traced back to
efforts by the United States Department of Health Education and Welfare in
1963.[3]
Since 1963, the statutes have been expanded both as to
those who must report and the circumstances that give rise to a reportable
incident. Civil and criminal liability
has also been included in some of the state statutes.[4] The legislation can be divided into four (4)
different categories: (a) those that require reporting by some people, but
exclude lawyers, (b) those that require some people, including attorneys to
report, (c) those that require everyone, including attorneys to report,
and (d) those that require everyone to report, but exclude attorneys by
recognizing the attorney/client privilege.
The latter approach has been taken by Delaware, Florida, Kentucky, New
Hampshire, New Jersey, Ohio, Oregon, Rhode Island, Tennessee and Wyoming.[5]
While
Kentucky has seen fit to preserve the attorney client privilege, its General
Assembly is considering a law that would subject clergy members to prosecution
if they failed to disclose to civil authorities incidents of child abuse, or
neglect, heard in the secrecy of the confessional.[6]
Mandatory reporting v.
attorney/client privilege
Model codes that
guide attorneys in their ethical relationship with clients recognize the importance
of the attorney/client privilege by mandating that: (a) a lawyer shall not
reveal information relating to representation without client consent[7] and
(b) a lawyer shall not use information relating to representation of a client
to that client’s disadvantage.[8] The attorney/client privilege is one of the
oldest of the privileges for confidential communication known to the common law
and necessarily encourages the client to communicate frankly and fully with the
lawyer, even as to embarrassing or legally damaging matter.[9]
The
privilege does not extend to communications that involve the client’s plan to
commit an act that would result in a future crime. “The privilege takes flight if the
relationship is abused. A client who
consults an attorney for advice that will serve him in the commission of a
fraud will have no help from the law. He
must let the truth be told” [10] This “crime/fraud” exception to the sanctity
of the privilege may have relevance to acts of sexual abuse as some maintain
that child abuse is often a pattern of conduct rather than one incident.[11] The Wisconsin
State Bar Committee on
Professional Ethics has opined that an attorney may report child abuse under
the child abuse reporting statutes if the attorney reasonable believes the
abuse will occur again. [12]
What happens when an attorney is ordered by a court to
divulge privileged communications? One
court has held that an order requiring the attorney to divulge the whereabouts
of a client who had not returned his child after a visitation did not violate
the duty to maintain confidences.[13] Both The Code of
Professional Responsibility[14]
and the Restatement of the Law Governing Lawyers, Tent. Draft No. 3,§115 (1990) allow disclosure of confidential communications
if ordered by a court. The Model Rules
cited earlier do not have such an exception to the privilege.
The issues:
If mandated by statute, (or
court order) must an attorney disclose client communications about incidents of
sexual abuse involving the client without the client’s authorization? For example, Texas law provides for
mandatory reporting by “a person having cause to believe that child’s physical
or mental health or welfare has been or may be adversely affected by
abuse. This requirement to report
applies without exception to an individual whose
person communications may otherwise be privileged, including an attorney,
member of the clergy, medical practitioner, social worker or mental health
professional.[15]
Statutes that have created exceptions to some privileges
have been upheld on the grounds of the public policy that children must be
protected. An exception to the
doctor/patient privilege has been upheld,[16]
as was an exception to the priest-penitent privilege[17],
marital communications privilege,[18]
the psychologist-patient privilege,[19];
the psychotherapist-patient privilege[20]
and the social worker-client privilege.[21]
Certainly,
we need to distinguish between past acts of abuse and future acts. Ethical guidelines have long held that they
are not to be used to justify a lawyer’s refusal to inform law enforcement of a
client’s plan to commit a crime in the future.
Texas rules provide that the privilege does not apply when the lawyer
has reason to believe that divulging the information is necessary to prevent
the client from committing a criminal or fraudulent act.[22] The lawyer is under a duty to reveal
confidential information when the client’s act is likely to result in death or
substantial bodily harm to a person.[23]
The critical question is: Must the attorney disclose
information about prior acts of abuse.
The statutes, particularly the language of the cited Texas statute are
quite broad. The stage appears to be set
for a major assault on the attorney/client privilege by the mandatory reporting
statutes. However, the courts and ethics
committees have not been so anxious to abrogate this privilege as has been done
in other professions.[24]
The lawyer actually has two dilemmas: (1) Do I violate
the ethical guideline if I report past abuse?
(2) Do I violate the mandatory reporting statute if I do not? If the lawyer is practicing in a state that
has enacted a broad statute mandating the report of prior abuse, clearly there
is a violation of the reporting statute if the information about the abuse is
not reported.[25] If a lawyer observes the attorney client
privilege then she will not be in ethical trouble, but certainly could be
exposed to civil and/or criminal liability by failing to report when so
required by the statute.
The use of a mitigation specialist in death penalty cases
has now become the national norm and this professional is an indispensable
member of the capital trial team. [26] A lawyer should act with competence,
commitment and dedication to the interests of the client and with zeal in
advocacy upon the client’s behalf.[27] The requirement of competence, commitment
and dedication means that counsel should consult a mitigation specialist in
every serious case, not just the capital case.
This is particularly true for the case that will likely go to trial.
It was argued that the holding in Ake
v. Oklahoma, mandating funding for the essential tools for litigating
significant factors in the defense of an accused, was limited to capital cases.
[28] The scope of Ake
has not been so limited and the right to funding is now applicable to all
cases as a part of the defendant’s Fifth Amendment right to Due Process and
Sixth Amendment right to Effective Assistance of Counsel at the very minimum[29].
The mitigation specialist is not only a member of the
defense team, but is a “representative of the lawyer” defined as one employed
by the lawyer to assist the lawyer in the rendition of professional legal
services.[30] Texas follows a special rule in criminal
cases that also applies the privilege to any fact that came to the knowledge of the
lawyer or the lawyer’s representative by reason of the attorney-client
relationship.[31] This privilege is broad and should be used to
its fullest. The wise attorney will not ask the
mitigation specialist to testify at trial so that the confidential information
remains confidential.
Does the privilege then also apply to the mental health
expert who has been hired to prepare mitigation testimony? Certainly, this person has been hired to
“assist the lawyer in the rendition of professional legal services” and would
be a representative of the lawyer. The
privilege would apply to that relationship, up to a point. Once that person takes the stand to offer
testimony the privilege no longer exists and the mental health professional can
be questioned on any matter, subject to state laws that may limit the scope of
the cross examination.
All members of the trial team should be familiar with the
language of both the mandatory reporting law as well as the rule that defines
the attorney-client privilege.
Information concerning past abuse is confidential, subject to the rule
applied to a testifying witness. Even
information concerning future acts may still be confidential if the state rule
reads as follows:
“There is no privilege under this rule if the
services of the lawyer
were sought or
obtained to enable or aid anyone to commit or plan
to commit what the
client knew or reasonably should have
known to be a crime
or fraud”[32]
Did the services of the attorney or any team member
enable or aid the client to commit an act of abuse? If not, then the privilege would remain
intact.
Conclusion:
Lawyers are faced with a dilemma and one that should be
discussed with clients prior to the time that a detailed consultation
begins. Counsel should be familiar with
the language and scope of both the ethical guidelines governing privileged
communications as well as the applicable mandatory reporting statute. While, it is certainly honorable to uphold
the attorney/client privilege in all respects, counsel will be of no benefit to
the client if his lawyer is in jail.
It
is critical for all involved in the defense of one charged with a crime to
understand the state’s mandatory reporting law.
If it’s coverage is broad, as is often the
case, then “any person” is mandated to report incidents of abuse and failure to
do so will expose that person to civil and/or criminal liability regardless of
the language of the privilege statute.
And from Laurie Morgan:
All fifty states and the District of Columbia have enacted statutes that mandate the reporting of suspected child abuse. States are required to enact statutes that provide for the reporting of known and suspected child abuse and neglect, and that provide for certain procedures and programs relating to child abuse in order to qualify for federal grant monies under the Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101-5106 (West 1997).
A
few state statutes require a particular and exclusive class of persons to
report suspected cases of child abuse that do include attorneys (Mississippi
and Nevada). More commonly, some state statutes require any person to report
suspected cases of child abuse, including attorneys, either explicitly or
implicitly by not providing for an exception based on attorney-client privilege
(Idaho, Indiana, Nebraska, New Mexico, North Carolina, Oklahoma, Pennsylvania,
Texas, and Utah). Finally, some state statutes require any person to report
suspected cases of child abuse, but which then specifically excludes attorneys
from reporting by preserving the attorney-client privilege (Delaware, Florida,
Kentucky, New Hampshire, New Jersey, Ohio, Oregon, Rhode Island, Tennessee, and
Wyoming).
The
statutes have survived attacks on the basis of compelling disclosure of
communications that would be privileged under the doctor-patient privilege,
priest-penitent privilege, despite challenges on first amendment grounds, and
marital communications privilege.
The
states have not been consistent on whether these statutes trump the
attorney-client privilege, however. Rule 1.6 of the Model Rules of Professional
Conduct provides that a lawyer shall not reveal information relating to representation
of a client unless the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out the
representation, and except to the extent the lawyer reasonably believes
necessary to prevent the client from committing a criminal act that the lawyer
believes is likely to result in imminent death or substantial bodily harm. Rule 1.8 of the Model Rules of Professional
Conduct further provides that a lawyer shall not use information relating to
representation of a client to the disadvantage of the client unless the client
consents after consultation. DR 4-101 of the Model Code of Professional
Responsibility provides that a lawyer may not reveal the confidences of the
client except with the permission of the client. Some courts have held that
under the “crime/fraud” exception to confidentiality, an attorney is under a
duty to report child abuse, and have similarly held that the mandatory
reporting statute trumps attorney-client privilege as to past criminal behavior.
Other states have disagreed, and held the lawyer to his duty of confidence.
The
conclusion that one must draw from these opinions is that the attorney must
take pains to recognize that the duty to report under the criminal law and the
ethical duty to report are not contiguous; that an attorney may be under a duty
to report under the criminal law, but not necessarily under the same ethical
duty. Moreover, where an attorney is
under a duty to report under a criminal statute, no ethics opinion has stated
that reporting abuse is a violation of ethical rules. Rather, in such a situation, an attorney may
or may not report abuse under the ethical rules. Thus, an attorney’s safest
course of action would be to favor disclosure, since an attorney does not want
to end up in jail.
First, the usual and necessary warnings
and caveats. The opinions
expressed below are mine, and have no authority in respect of the Committee on
Specialty Guidelines, nor the Specialty Guidelines
Revision Committee, both committees on which I serve. I also, of course, am not an attorney. The problem posed here represents what I
have previously termed “negotiating the gauntlet of law, ethics and
professional practice.” While I personally
believe that there are times when either personal or professional ethics must
“trump” law, I think these times are few and far between, and need to be
reserved for all but the most extreme of situations. I analyze the mandatory reporting issue, in
the context of retention by defense counsel for mitigation in either a sexual
abuse or death penalty case, in the following manner.
First, a defendant has a Sixth Amendment right to
(effective) counsel. In order for that
right to have any meaning, there will be many occasions where defense counsel
will seek a confidential forensic evaluation in order to evaluate whether or
not the “good news” [mitigating circumstances] sufficiently outweighs the “bad
news” [aggravating circumstances, including prior unknown crimes]. I cannot see how a meaningful forensic
evaluation under these circumstances can be conducted without the psychologist
operating under an extension of whatever attorney-client privilege exists in
that jurisdiction. There are exceptions
to this privilege, of course, including so-called “reason to believe” that a
future crime is “planned.” I do not
think that the “reason to believe a planned crime” exception is likely to occur
in the circumstances described above.
For example, assume that in conducting a confidential
mitigation-aggravation evaluation and risk assessment of a sexual predator I
conclude that the defendant falls into the highest probability of reoffense bin and that he has told me of 30 other unknown
child sexual assaults. Assume further
the worst of the worst [and hence highly unlikely] contextual factors: the
prior offenses always occurred while the person was intoxicated or high, he was
in the community under no supervision, he acknowledges daily intoxication, he
had plenty of access to his preferred child type, and that he himself
acknowledged that he had no control over his sexual impulses. In that worst of the worse circumstance, I
would believe that my ethical, professional and legal obligations would not
make mandatory reporting the first choice.
Rather, in line with modern risk management principles, I would first
attempt to manage that risk by consulting with his attorney and seeking an
alliance with the client to voluntarily enter a more restrictive environment,
for example a hospital, or take other risk management steps that had a
reasonable probability of maintaining the client in the community with
dramatically lower risk of a “future” crime.
If the defendant refused to acknowledge his level of risk, to both
himself and to others, I would consult with that attorney and seek any other
resolution that might be possible as well as legal consultation on the exact
state of affairs in that jurisdiction.
For example, if the person were at large in the community following an
arrest, there would likely be conditions of bail that might be used to “bring
him in,” i.e., the unknown substance abuse, or the pragmatic effects that would
follow from his attorney resigning from representation. Yes, that potentially would involve some
degree of piercing of the attorney-client privilege, but a lot less than
mandatory reporting. If all else failed,
having never been in that level of extremis, I do not know what I would do,
but, since Utah uses “any person” language in its statute, I would, in
consultation with my own attorney, probably inform the judge that was
overseeing the case, in hopes of finding a judicial solution to the matter.
The
point of the scenario described above is that I would explore every avenue
possible rather than resort to personally deciding to violate a defendant’s
privilege. If all of that failed, I
would still try to bring the problem to the attention of the system, rather
than attempting to solve the problem on my own, since it is, in the last
analysis, a systems problem at the interface of ethics, law, social policy and
the like.
[1] Laura W. Morgan, “Between a Rock and a Hard Place: An Attorney’s Duty to Report Child Abuse. National Legal Research Group, Charlottesville, Virginia.
[2] 42 U.S.C.§5101-5106.
[3] Children’s Bureau, United States Department of Health, Education and Welfare, The Abused Child: Principles and Suggested Language of Legislation on Reporting of the Physically Abused Child (1963).
[4] Douglas J. Besharov, Child Abuse and Neglect: Liability for Failing to Report, 22 Trial 67 (August 1986).
[5] Laura W. Morgan, at page 2.
[6] Lawrence Morahan, Kentucky Bill Targets Clergy-Penitent Privilege, CNSNews.Com (January 20, 2003).
[7] Model Rules of Professional Conduct Rule 1.6 and Model Code of Professional Responsibility, DR 4-101.
[8] Model Rules of Professional Conduct Rule 1.8
[9] Upjohn v. United States, 449 U.S. 383, 389 (1981).
[10] Clark v. United States, 289 U.S. 1,14 (1933).
[11] Lita Furby, Sex Offender Recidivism: A Review, 105 Psychological Bull. 3 (1989).
[12] Formal Opinion E-89-9 (May 24, 1989).
[13] In Re Marriage of Decker, 153 Ill. 2d 298, 606 N.E. 2d 1094 (1992)
[14] DR 4-101-C
[15] Tex.Fam.Code §261.101
[16] In re Baby X, 97 Mich. App. 11,293 N.W.2d 736 (1980).
[17] Church of Jesus Christ of Latter Day Saints v. Superior Court, 159 Ariz. 24 (Ct. App. 1988)
[18] Brown v. State, 588 So. 2d 551 (Ala.App. 1991).
[19] Bradley v. Ray, 904 S.W. 2d 302 (Mo.Ct. App. 1995).
[20] Fewell v. Besner, 444 Pa. Super. 559, 664 A.2d 577 (1995).
[21] People v. McKean, 94 Ill. App. 3d 502, 418 N.E.2d 1130 (1981).
[22] Tex. R. Prof. Cond. Rule 1.05 (c)(7)
[23] Tex. R. Prof. Cond. Rule 1.05(e)
[24] Robert P. Mosteller, Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant, 42 Duke L.J. 203 (1992).
[25] North Carolina Ethics Committee, Opinion 175 (January 13, 1995) and Morris v. State, 833 S.W.2d 624 (Tex.Ct. App. 1992).
[26] Wiggins v. Smith, 123 S.Ct. 2527 (2003) and American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Feb. 2003).
[27] Tex. R. Prof. Cond. Rule 1.01 Comment 6.
[28] 470 U.S. 68 (1985).
[29] Tex. C. Crim. P. §26.05.
[30] Tex. R. Evid. 5.03(a)(4).
[31] Tex. R. Evid. 5.03(b)(2).
[32] Tex. R. Evid. 5.03(b)(2).