BGD discusses whether or not lawyers should report child abuse learned in representation with The Indiana Lawyer
BGD partner Margaret Christensen and summer associate Jessica Laurin recently discussed whether lawyers should report child abuse learnt in representation in a column for The Indiana Lawyer.
According to Christensen and Laurin, the answer lies in determining whether the information is privileged or merely confidential. The Reporting Law is broad and provides that an individual shall make a report, and the Confidentiality Rule requires complete confidentiality of all knowledge learned during representations (with limited exceptions). The Privilege Statute is also critical in that communications between the attorney and client purposefully made for obtaining legal advice may not be discovered unless another statute provides for said discovery, or if the client waives the privilege.
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.
Unfortunately, only limited precedent guides Indiana lawyers deciding whether to report child abuse; it is especially complicated for lawyers because confidentiality and privilege may overlap. Privilege only protects communications between the lawyer and the client made purposefully for giving or receiving legal advice. 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.” Because the ethics rules cover confidentiality, but do not squarely address privilege, the legal analysis is different for each.
Therefore, “lawyers may not report privileged communications regarding child abuse…. lawyers may report information that is only confidential, though not privileged, and are obligated to do so under the Reporting Statute.”
As confidentiality and privilege often overlap and add to legal confusion, so do the varying interpretations used to confront it.