Cite as: Connell, M., Golding, S., Morgan, L., & Niland, J. [authors listed alphabetically] (Fall, 2004).  Expert Opinion – Does mandatory reporting trump attorney-client opinion?. American Psychology-Law Society News, 24(3), Pp. 10-13,15.

 

Expert Opinion

 

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

 

 

Background

 

             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]

 

Court order or statue–is there a difference?

 

            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. 3115 (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]

 

The attorney-client privilege

 

            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.

 

Mitigation and mental health experts

 

            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. 

 

 

Stephen Golding’s response and comments

 

            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.C5101-5106.

[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).