By Margaret Christensen and Jessica Laurin
When — if ever — is it appropriate for an attorney to report child abuse learned through client representation? The question implicates Indiana Code § 31-33-5-1 (“Reporting Law”), Indiana Rule of Professional Conduct 1.6 (“Confidentiality Rule”), and the attorney-client privilege, codified at Indiana Code § 34-46-3-1 (“Privilege Statute”). The answer centers on the difference between confidentiality and privilege.
The Reporting Law is broad, providing that “an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article” (emphasis added). The Confidentiality Rule, however, requires complete confidentiality of all knowledge learned during representation absent rare circumstances such as preventing reasonably certain death or substantial bodily harm, and complying with another law. Also critical is the Privilege Statute; communications between the attorney and client purposefully made for obtaining legal advice may not be discovered, except if another statute so provides or if the client waives the privilege. See, e.g., Richey v. Chappell, 594 N.E.2d 443, 445–46 (Ind. 1992) (citing Jenkinson v. State, 5 Blackf. 465, 466 (Ind. 1845)); Buntin v. Becker, 727 N.E.2d 734, 740 (Ind. 2000).
A lawyer’s reporting obligation depends on whether confidentiality and/or privilege are implicated. In short, lawyers may not report privileged communications regarding child abuse. However, lawyers may report information that is only confidential, though not privileged, and are obligated to do so under the Reporting Statute. For example, suppose your client privately reveals in a parenting time discussion that her estranged husband abused their children. This communication is privileged. Conversely, suppose you are interviewing your client’s nanny to determine if she would make a good character witness to finalize a parenting time order, and the nanny reveals child abuse. This communication is not privileged, but is confidential. The distinction concerns the communication’s source. The Confidentiality Rule, Comment 3, explains, “[t]he confidentiality rule, for example, applies not only to matters communicated in confidence by the client [privileged communication] but also to all information relating to the representation, whatever its source.”
Unfortunately, only limited precedent guides Indiana lawyers deciding whether to report child abuse. According to the Indiana Supreme Court, the Reporting Law is designed “to err on the side of overreporting suspected child abuse or neglect.” Smith v. State, 8 N.E.3d 668, 683 (Ind. 2014) In Smith, the Supreme Court held that a high school principal’s four-hour delay between learning of his student’s rape allegations and notifying DCS was too long. Id. at 670–73. But Smith did not implicate a lawyer’s duty of confidentiality or privilege, which likely would have affected the court’s analysis.
It is especially complicated for lawyers because confidentiality and privilege may overlap; however, there are well-documented distinctions. Privilege only protects communications between the lawyer and the client made purposefully for giving or receiving legal advice. Sue Michmerhuizen, “Confidentiality, Privilege: A Basic Value in Two Different Applications,” American Bar Ass’n Ctr. For Prof’l Responsibility (2007). Further, confidential information is broader than privilege as it “includes information obtained from a third party as well as information obtained in the presence of unnecessary third parties, neither of which is protected by the attorney-client privilege.” 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, 239 (1992). Because the ethics rules cover confidentiality but do not squarely address privilege, the legal analysis is different for each.
Despite the General Assembly’s unqualified language that “an individual” must report child abuse, see Reporting Law, the Legislature evidently did not intend to abrogate attorney-client privilege. According to Indiana Code § 31-32-11-1, privileged communication between many parties — including spouses and social workers/clients, among others — cannot be excluded from evidence involving child abuse because it is privileged. Specifically, the fact that communication is privileged is “not a ground for … failing to report” as the Reporting Law requires.
Although Indiana Code § 31-32-11-1 abrogates privilege for many professionals, attorneys are noticeably not enumerated. The Indiana State Bar Association Legal Ethics Committee recently made this point. Quoting a 1993 Kentucky Bar Association opinion, E-360, the committee states that the statute “was intended to inform us, in a roundabout way, that lawyers are not required to report abuse or neglect if reporting would violate the attorney-client privilege.” It is improbable that the General Assembly intended to abrogate such an ingrained concept without doing so explicitly — especially because it explicitly abrogated several other types of privilege. See also Mosteller at 240 n. 109. This interpretation conforms with public policy, as the assurance that lawyers will take their clients’ secrets to the grave is the bedrock of the trusting relationship required for attorneys to adequately advise and represent their clients.
Unlike privileged communications, lawyers must report confidential information regarding child abuse. Under Confidentiality Rule 1.6(b)(6), a lawyer may report to comply with other law. Because the Confidentiality Rule allows lawyers to comply with other laws, lawyers have no legal excuse for not reporting confidential information. See, e.g., Nevada State Bar Ethics Opinion No. 30, March 25, 2005 (noting that a “comply with other law” exception would resolve the conflict between its ethics rules and its mandatory reporting statute).
The ISBA Committee, in contrast, concludes that the Indiana Supreme Court’s authority over attorney “discipline and disbarment” requires that that the ethics rules trump the General Assembly’s legislation. Therefore, “the Committee does not believe that the exception to confidentiality ‘to comply with other law’ . . . resolves the issue.” But, by adopting ABA Model Rule 1.6(b)(6), did the Indiana Supreme Court defer to the General Assembly’s legislation? When deciding whether to report child abuse, ask: Did you gain information from a privileged communication? If so, you must protect the privilege and cannot report. But if the information is confidential though not privileged, Indiana’s ethics rules will not protect you from failing to report immediately. Admittedly, this appears at odds with the sanctified Oath of Attorneys, which states “I will maintain the confidence and preserve inviolate the secrets of my client at any peril to myself.” Thus, some attorneys may choose not to report unprivileged information in order to preserve the client’s trust and avoid creating a conflict. However, upon learning of child abuse from someone other than the client, the information is no longer the client’s secret, and it is, indeed, at the attorney’s peril to not report.•
• Margaret Christensen is a partner at Bingham Greenebaum Doll LLP. Jessica Laurin is a J.D. candidate at Indiana University Maurer School of Law. The opinions expressed are those of the authors.